State v Winnie Atieno Owino

wa Nyasewe, whom she knew as Winnie who called PW2 as her grandmother. 11. PW2 testified that she went and got her ‘Nyumba Kumi’, who led her to Winnie’s-the accused person’s home whereupon knocking, Winnie’s mother opened the door. She testified that she inquired where Winnie was and was informed that she was sleeping. It was her testimony that she told Winnie’s mother what the Assistant Chief had told her about Winnie after which she left for her house with Winnie until 4 am when police officers went and picked Winnie from the house of PW2 and went away with her. She stated that on 30.5.2020, she went to Ligega Police Station and recorded her statement. 12. In cross-examination, PW2 stated that the Assistant Chief sent her to secure Winnie because Martin’s relatives were agitated after his death and he feared that they could invade Winnie’s family. It was her testimony that she found Winnie sleeping on the floor of her mother’s house near the table. She stated that there were other children as well as Winnie’s child, in total about 5 people in the house asleep though Winnie and her mother were awake. 13. PW3 Esther Anyango, a minor was taken through voire dire examination and although she was found to be intelligent enough to give evidence, she did not understand the meaning of taking an oath so she gave an unsworn testimony. She testified that the deceased was her brother while the accused was her cousin. It was her testimony that on 27.5.2020 at 3 pm, she was at the accused’s home playing with Michelle in the company of the deceased Martin and his friend George. She testified that Winnie’s child abused Martin (Tinny) and Martin caned the child. 14. It was her testimony that later after Winnie was told by her child on what Martin had done to her, Winnie went and attacked Martin with a spade but Martin snatched the spade from Winnie and after struggling for a while, Winnie left threatening Martin telling him that “he will see” and that Winnie told Martin that she was going to burn his house. 15. SPW3 testified that she was at home with George when Winnie arrived and attacked Martin and that when her mother returned, she informed her that Martin and Winnie had fought. She stated that Martin was in the grave. It was her testimony, quite painfully that Martin screamed in the maize plantation and when they went to where he was, they found him cut on the head. She stated that Winnie was the one who fought with Martin. She identified Winnie as the accused before court. 16. PW4 Sarah Adhiambo Otieno testified that on the 28.5.2020 at about 6 pm, she was on her way to Nyamwongo Centre where she found the deceased’s mother with the accused, Winnie whom she identified in the dock, pulling one another so she stopped and heard the deceased’s mother tell the accused that having fought with Martin, it was enough. 17. PW4 testified that the accused told the deceased’s mother that Martin had assaulted her child and the deceased’s mother told the accused to forgive Martin but the accused said that she could not and Mama Martin told Winnie not to fight Martin because he was a boy but the accused responded by saying that Martin knew that she too was a boy so they could fight. 18. PW4 testified that she intervened and told Winnie not to engage in a fight with the mother of Martin and that she then held Mama Martin’s hand and they proceeded to the market. It was her testimony that the accused told Mama Martin that Martin abused her mother as a prostitute but PW4 told Winnie to leave the fight. 19. She further testified that she went to the Market Centre with the deceased’s mother after which they parted ways as she proceeded to do her shopping then returned home. It was her testimony that at about 10 pm, she received a phone call from Alice Achieng who told her that ‘Tinnie’ (Martin) had been cut after which Alice asked her to go with a bodaboda which she did rush there and found Martin outside his mother’s house lying with a deep cut on the head. She then rushed to the Centre and returned with a bodaboda on which they carried Martin to hospital at Ligega Health Centre, where he was pronounced dead on arrival. She stated that she called the Assistant Chief and informed him of what had happened then she went to the home of the Assistant Chief and accompanied him to the hospital where he confirmed that Martin was dead so he called the police who went and removed the body to Sega Mortuary. She further stated that she recorded her statement at Ligega Police Post. She identified the accused as the person whom she found struggling with Martin’s mother. 20. In cross-examination, PW4 stated that Alice Achieng called her on the night of 28 th May 2020 saying Martin had been cut and told her to go there and to also call a bodaboda person to go and help take Martin to Hospital. She stated that she went to the scene and that it only took about 5 minutes. She reiterated that Alice told her that Martin had been cut. She stated that upon her arrival, she found when Martin had been cut and was lying down. She stated that Alice was present when she arrived at the scene though Alice did not tell her how Martin was cut but that she only told her that Martin had been cut and was lying down. She testified that there was delight lights illuminating the area. 21. PW5 George Oduor Oduor testified that the deceased Martin was his friend while the accused was his cousin. It was his testimony that on 27.5.2020 at about 2 pm he was with Martin having gone to bath and returned to his home where Winnie’s child, Precious was present. He testified that the child abused Martin who then disciplined her using a cane and when Winnie returned home, her sister, Michele informed her of what Martin had done. 22. It was his testimony that they went to Martin’s home and later, Winnie arrived there and asked if Martin knew how to bear children. He testified that Winnie abused Martin and took a spade to cut him but after they struggled, Martin snatched the spade form her. PW5 testified that Winnie then told Martin that he would know that she was also a man and that he would not live for two months or three days, then she left, threatening to do something bad to Martin. 23. PW5 testified that he stayed with Martin until 5 pm when he left for his home. He reiterated that Winnie was her cousin and that they lived in one homestead with their houses adjacent to each other. He further testified that while at home, Winnie’s mother went and asked her why her lips were swollen then told her to be polite.

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24. It was his testimony that at around midnight, he was called out by Maurice and Erick who woke him up saying Martin had been cut so they proceeded to Martin’s home and found him lying outside his home. He stated that later, Martin was taken to hospital. He stated that from his house to Martin’s home was not far as he could see the homestead from his home. He further testified that in the morning, he went to Ligega and recorded his statement of what he knew. He identified the accused in court as Winnie. 25. In cross-examination, PW5 stated that on the 27/5/2020 he and Martin were at his home with the accused’s children who were later joined by PW3, Esther. He stated that the kids were playing together. He stated that he heard Winnie threaten Martin and tell him ‘ you will not finish 2 months or 3 days and you will know that we also have men”. He stated that he did not see Esther when Winnie was saying these words to Martin and further that he did not hear what Esther heard since he was in the house at that time. 26. It was his testimony that it was Maurice Ochwango who told him that Martin had died. He stated that Martin was his friend though older and that he was not his relative. It was his testimony that on the morning of 28.5.2020, Maurice, Fred and Eric went and burnt all household items in Winnie’s house and also destroyed their house. He stated that only Fred was his relative and friend and that Maurice and Eric were not related to him. 27. PW6 Thomas Odhiambo Otieno testified that the deceased Martin was his son. He further testified that on the 4.6.2020 at 7 am, he was at Sega Mission Hospital Mortuary with his cousin Charles Omondi where they identified the body of his son. He testified that a postmortem was done in his presence and in the presence of two police officers from Ligega Police Post and was told that the cause of death was a deep cut on his head which led to heavy bleeding. 28. It was his testimony that he learnt about the death of his son on 28.5.2020 while he was in Kisumu working. He stated that at 11.00 pm his wife called him saying Winnie had gone with her friend and attacked Martin who screamed and when his wife and Esther, their youngest daughter heard, they got out and rushed to where Martin was and found him in a maize plantation. They screamed for help and people went and assisted to take him outside their house. 29. PW6 testified that he called the Assistant Chief and requested him to call Mlango Kumi to assist arrest Winnie before she escaped. He stated that he was later called and informed that Martin had been taken to Hospital but had died so he asked for permission from work and went home and found Martin already in the mortuary at Sega. It was his testimony that Winnie was his granddaughter and that she and Martin were close friends and that Martin used to coach her in Biology. 30. PW7 Dr. Sande Kalindi Charo testified that he was a doctor at Teso North County Referral Hospital and that he conducted a postmortem on the body of the deceased on the 4.6.2020 at Sega Mission Hospital mortuary. He testified that the body was of an African male 19 years’ old who had died on 28.5.2020. 31. It was his testimony that there were defence wounds on the left hand and a compound skull fracture on the right temporal region but that there was no cyanosis. The respiratory, cardiovascular, digestive, genito-urinary systems and other internal systems were all normal. He testified that there was a sharp linear cut on the temporal bone, compound fracture of temporal bone - linear brain hernation and intercelebral bleeding. That there was intracerebral haemorrhage and as a result of the findings, he concluded that the cause of death was as a result of severe head injury due to sharp penetrating trauma. He testified that he signed the Postmortem report on 4.6.2020 which he produced as PEX1. 32. PW8 Yvonne Anyango Owino, a minor aged 16 years was taken through voire dire examination by the court and found to possess sufficient intelligence. She also understood the meaning of an oath so she gave sworn testimony. She stated that the accused and Michelle Achieng were her sisters whereas the deceased was their neighbour. 33. She testified that on the 27.5.2020 when she returned home, she met Michelle who told her that Martin had assaulted the accused’s child and that the accused went to ask Martin why he had assaulted her child. 34. It was her testimony that on the 28.5.2020 at about 10.00 pm, they went to sleep and that three people-men who were passing by called out the accused who went out and talked with them before she returned to the house. She testified that she knew the three people as they used to go to church together and also because there was light outside and she was able to peep outside and see them. She admitted that she did not know their names and stated that they spoke to the accused for about 4 minutes before the accused went to sleep. 35. PW8 further testified that at around midnight, she heard screams from the home of the deceased and that two ladies then knocked at their door and their mother opened the door. She stated that one of the ladies was Jennipher, the village elder who asked for Winnie. She stated that her mother woke up Winnie who got out as the ladies stated that the Chief had sent them to collect Winnie and told them that Martin was dead. PW8 testified that her mother followed the two ladies. 36. It was her testimony that her mother was to attend a funeral for her brother-in-law that morning so she returned and prepared herself and left at 4.30 am. She stated that people then went to their home and broke the doors, looking for Winnie but were informed that Winnie had left after which the people told them to get out of the house which they did and the people started burning the houses. It was her testimony that Jenipher arrived and took her along with Michelle and Winnie’s child to the police station where she recorded her statement. 37. PW9 No. 46263 Sergeant Abuyeka Asingo testified that on the 3.6.2020 he was the investigating officer in this case. He testified that he found that the accused had already been arrested and transferred to Ukwala Police Station and that his colleague CPL Martin Wanyonyi had obtained an order from Ukwala Court to keep her in custody to enable them complete investigations. 38. He testified that in the company of CPL Wanyonyi, they went to the scene and later to Ligega Police Post where some witnesses were present for statement recording. He stated that at the scene, they found when the house of the family of the accused had been razed by members of the public.

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39. It was his testimony that they recorded statements from witnesses some of whom informed them that prior to the alleged murder incident, the deceased Martin Ouma had assaulted the daughter to the accused in the absence of the accused and when she returned, she went to establish from the deceased why he had assaulted her daughter and the two fought after which the accused threatened the deceased. 40. PW9 testified that an autopsy was conducted on the body of the deceased which autopsy was witnessed by PC Didha Dambala at Kocholya Sub County Hospital. He further testified that they investigated the case with the assistance of the local Assistant Chief to establish the identities of the three boys who spoke to the accused and that the Assistant Chief told them that one of them was known but the Police were not able to trace them. He stated that they were still tracking them down. PW9 identified the accused in the dock. 41. In cross-examination, PW9 stated that he dealt with the murder case which was before this court. He further stated that there were names floated of people who allegedly burnt down the accused person’s home. Defence Case 42. Placed on her defence, the accused gave a sworn testimony and stated that she was Winnie Atieno Owino. She stated that on 27 th & 28th May 2020 at 5pm she was from School at Got Nanga Secondary School and heading home at Kinyiner Masamra and that upon her arrival, she found her child Nadia crying and asked Michelle why she was crying. Michelle informed her that Martin had assaulted the child. 43. She testified that she met Esther, Michelle and Oluoch Oduor her cousin after which she went to fetch water and passed by Martin’s place (home) to ask why he had beaten her child as this was not the first time that he had done so. It was her testimony that Martin started a quarrel and started beating her so she decided to defend herself. 44. The accused further testified that both Esther and George Oduor arrived and so she left to fetch water. She testified that the deceased told her that if she told her mother what had happened, he would make sure their house burns to which she responded by telling him that his house would also burn if hers did. 45. It was her testimony that on the evening of 28.5.2020 at about 9-10 pm., some people called her and when she got out she met four girls whom she greeted and inquired as to their destination to which they replied that they had visited a sick friend. The accused stated that she then entered the house and slept but at midnight, towards 1pm, someone knocked on their door and after her mother opened, a lady entered and informed her that they had to leave together as the Chief was calling her but instead the lady took her, the accused to her house and told her that Martin had been killed and it was being said that the accused had information regarding the death. 46. The accused testified that she denied any involvement. She further stated that the police went and took her to Ukwala saying she was a witness but she refused saying she knew nothing. It was her testimony that later on, the DCI called her saying her home had been reduced to ashes by some boys in the village whom she had a disagreement with. The accused denied killing Martin and stated that she was not aware of the circumstances under which Martin was killed as she had no issue with him. 47. In cross-examination, the accused stated that when she found out that Martin assaulted her child, she got annoyed and angry so she went to his house and they fought. She denied threatening Martin and stated that it was Martin’s mother who threatened her saying she was not part of their family. It was her testimony that she never threatened to kill Martin but that it was Martin who said he would burn their house. 48. The accused further stated that on the 28.5.2020 Michelle was asleep and further that no men went to their home but only four girls, Maurine, Irene, Molenta and Salome, who she spoke to. It was her testimony that she used to go to church with the said girls who hailed from a different village. She testified that Michelle was asleep and that she never saw the four people who went to their home at night. 49. DW2 Pamella Majuma Owino testified that on the 29.5.2020 she was in her house with Winnie (the accused), Michelle, Yvonne and Winnie’s Child where they ate dinner and slept at about 8.30pm. She stated that she locked the door and switched off lights but that in the middle of the night at about 3am, she heard a knock on the door and on opening the door she met Jennipher Agola who greeted her and asked if Winnie was present. 50. DW2 testified that she inquired why they were asking for Winnie to which she was informed that the Chief had sent for Winnie to be collected and taken to the Chief’s place but failed to disclose why Winnie was required at the Chief’s place. It was her testimony that she told Jennipher to call the Chief and inform him that Winnie had been sick for two days and she needed to go to hospital and that she felt cold. 51. It was her testimony that Jennipher left with Winnie. She further stated that the following morning, she woke up and left for a funeral at 5.30pm. She stated that she did not know anything else and that while still at the funeral, she received a call from her sister informing her that her house had been burnt. 52. In cross-examination, DW2 stated that she slept in the same house with Winnie and that she slept at about 9pm while Winnie and the rest had slept earlier at around 8.30pm. It was her testimony that none of them got out of the house as she could have heard had the door been opened. DW2 reiterated that it was not true that Winnie got out at 10pm and spoke to some people. She further stated that she never heard that Martin had assaulted Winnie’s Child. 53. The defence case was closed. Submissions 54. Only the defence counsel filed written submissions. In his submissions on behalf of the accused, Mr. Oduol advocate reiterated the evidence adduced by the prosecution and defence witnesses and urged the court to acquit the accused on account that the circumstantial

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evidence adduced by the prosecution witnesses only raised suspicion and was therefore not watertight to establish the guilt of the accused person beyond reasonable doubt. Counsel urged this Court to find that the accused is innocent and acquit her. Analysis and Determination 55. I have considered the evidence adduced by the prosecution witnesses and the defence. The issue for determination is whether the prosecution have proved the guilt of 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: a. The fact and the cause of death of the deceased; b. The fact that the said death was caused by unlawful act or omission; c. That it was the accused person whose unlawful act or omission was responsible for the death of the deceased; d. That the said unlawful act of omission or commission was with malice aforethought - “mens rea”. 56. The fact and the cause of death of the deceased was proved beyond reasonable doubt by the evidence of PW1, PW2, PW4 and PW6 all who saw the deceased’s body at the Sega Mission Hospital. PW6, the deceased’s father testified that he witnessed his son’s postmortem in the presence of his cousin Charles Omondi. Dr. Sande performed an autopsy on the deceased’s body. Accordingly, Iam satisfied that there was death. 57. The cause of death was confirmed through the evidence of PW7 Dr. Sande Charo who conducted a postmortem examination on the body of the deceased thereon on 4/6/2020 and produced postmortem report as PEx 1 confirming the cause of death as severe head injury due to sharp penetrating trauma. 58. The only issue therefore is whether the said death was caused by unlawful act of omission or commission on the part of the accused person. The Information against the accused person is that she jointly with others not before court murdered the deceased Martin Ouma Odhiambo. From the evidence adduced there was no eye witness who saw the deceased being killed. The prosecution’s case against the accused rests purely on circumstantial evidence. 59. The Court of Appeal in the case of Ahamad Abolfathi Mohammed and Another v Republic [2018] e KLR, addressed itself to the nature of circumstantial evidence stating that it was evidence that enabled a court to deduce a particular form of circumstances or facts that have been proved and thus formed a strong basis for proving the guilt of an Accused person just as direct evidence. 60. The Court stated: “However, it is altruism that the guilt of an accused person can be proved by either direct or circumstantial evidence. Circumstantial evidence is evidence, which enables a court to deduce a particular fact from circumstances or facts that have been proved. Such evidence can form as strong a basis for proving the guilt of an accused person just like direct evidence. Way back in 1928 Lord Heward, CJ, stated as follows on circumstantial evidence in R v. Taylor, Weaver & Donovan [1928] CR. App. R. 21: “It has been said that the evidence against applicant is circumstantial. So it is, but circumstantial evidence is very often the best. It is evidence of surrounding circumstances which, by undesigned coincidence is capable of proving a proposition with the accuracy of Mathematics. It is no derogation from evidence to say that is circumstantial.” (See also Musili Tulo v. Republic Cr. App. No. 30 of 2013). Before circumstantial evidence can form the basis of a conviction, however, it must satisfy several conditions, which are designed to ensure that it unerringly points to the accused person, and to no other person, as the perpetrator of the offence. In Abanga alias Onyango v Republic, Cr. App No. 32 of 1990 this Court set out the conditions as follows: “It is settled law that when a case rests entirely on circumstantial evidence, such evidence must satisfy three tests: (i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (ii) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (iii) the circumstances taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else.” (See also Sawe v. Republic (supra) and GMI v. Republic, Cr. Ap. No. 308 of 2011. In addition, the prosecution must establish that there are no other co-existing circumstances, which would weaken or destroy the inference of guilt. (See Teper v. R. [1952] All ER 480 and Musoke v. R. [1958] EA 715). In Dhalay Singh v Republic, Cr App. No. 10 of 1997, this Court reiterated this principle as follows:

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“For our part, we think that if there be other co-existing circumstances which would weaken or destroy the inference of guilt, then the case has not been proved beyond any reasonable doubt and an accused is entitled to an acquittal.” 61. The Superior Court then set out the test to be applied in considering whether circumstantial evidence placed before a court can support a conviction. The court stated: “Before circumstantial evidence can form the basis of a conviction however, it must satisfy several conditions, which are designed to ensure that it unerringly points to the Accused person, and to no other person, as the perpetrator of the offence. In Abanga alias Onyango v R Cr. App. No 32 of 1990, this court set out the conditions as follows: “It is settled law that when a case rests entirely on circumstantial evidence, such evidence must satisfy three tests: (i) the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; (ii) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the Accused; iii) the circumstances taken cumulatively, should from a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the Accused and none else.” 62. In the instant case, the evidence adduced by the prosecution witnesses and specifically by PW1 was that on the material night, the night of 28th – 29th May 2020, she was awoken by the deceased who was screaming saying, ‘ Wooi, Winnie and her friends have invaded me,’ which screams led her to the deceased’s location in the maize plantation where she noticed the deceased had a cut wound on the head. 63. PW1 told the court that though she did not find anyone at the scene, she was convinced that it was Winnie who had attacked the deceased because earlier on in the day, the accused had gotten into a fight with the deceased and threatened him. 64. PW4 also gave evidence showing that the accused had some score to settle with the deceased when she stated that she found the accused and the deceased’s mother having a war of words wherein the deceased’s mother, PW1, was trying to calm down the accused by telling her that she should not fight with the deceased as he was a boy but the accused insisted that the deceased knew that she too was a boy and therefore they could fight. 65. PW5 who had been with the deceased on the material day testified that when the accused learnt that the deceased had caned her child, she sought the deceased out at his home where she found him, abused him and took a spade to hit him with but the deceased managed to snatch the spade from her to which the accused responded by threatening the deceased that he would know that she was also a man and that he would not live for two months or three days as she would do something bad to Martin. 66. PW8, the accused’s sister testified that on the 28.5.2020 at about 10.00 pm, they had gone to sleep when 3 people, men, passed by their house and that they called the accused out and she went and talked to them for about four minutes then she returned to the house. It was her testimony that though she did not know their names, she recognised them as they used to attend church together and further that she was sable to recognise them as there was light outside. 67. The accused testified and denied ever being involved in the death of the deceased. She however conceded that the deceased had beaten her child and that she was angry at him. She stated that some girls visited her at night. She denied that the visitors were men. DW2 her mother testified too and denied that she was aware of any visitors who went to her house at night asking for the accused person. She denied that she was aware of the issue of the deceased assaulting the child of the accused. 68. The burden of proof lies on the prosecution to prove its case against the accused person beyond reasonable doubt. That burden does not shift even if the accused person elects to remain silent. 69. I have examined the circumstantial evidence adduced by the prosecution witnesses. The accused person’s own sister, PW8 tried to evade giving evidence against the accused but after she was treated as a refractory witness, she offered to tell the court what she knew about the incident. She was in agreement with the rest of the testimonies for the prosecution that the deceased had beaten the child of the accused and that the accused did go to establish from the deceased why he had assaulted her child. She also testified that on the night of the alleged killing of the deceased Martin, three people-men, went to her home, called out the accused who got out to meet them at about 10pm then the accused returned to their house after about 4 minutes. PW8 knew the people and saw them well using light from outside their house. She knew them as people with whom they attended church. She however did not give their names. 70. From the totality of the prosecution evidence, it is clear that the accused had a score to settle with the deceased for caning her child. She had a vendetta against the deceased because when she tried to attack the deceased with a spade, to avenge for the assault on her child, the deceased managed to snatch the spade from her which prompted her to threaten the deceased with future harm. That evidence was never shaken. 71. The accused elected to adduce and challenge the evidence adduced by the prosecution witnesses although she was not obliged to do so. In her sworn testimony, she admitted that she got into a fight with the deceased after learning that the deceased had caned her daughter. She testified that this was because it was not the first time that the deceased had caned her daughter. She however accused the deceased for starting a quarrel and beating her and that she did so in self-defence after which she left. She further stated that the persons who called her out on the night of 28.5.2020, were her girlfriends who had come from visiting a sick person. On the contrary, the accused’s mother who testified as DW2 stated that the accused never got out of the house and that there was no way the accused could have gotten out of the house on the 28th without her mother hearing the door being opened.DW2 stated that she was the last to sleep after all her children including the accused had slept and that they all slept in the same house. 72. This discrepancy between the testimony of mother and daughter who slept in the same house raises questions as to whether either one of

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them was telling the truth before court. It is worth noting that both the accused and her sister, PW8 testified that the accused left the house on the night of 28th and spoke to some people outside of the house before returning into the house to sleep. The only difference is that her sister testified that the people were men whereas the accused testified that they were her girlfriends. 73. Back to the unsworn evidence of PW3, this evidence would only have value if it was supported by other evidence in the case. See the Court of Appeal decision in Jamaal Omar Hussein v Republic [2019] eKLR. PW3’s evidence agreed with that of PW5 that the accused on learning of the deceased’s action of caning her child, went to the deceased’s home and attempted to attack him with a spade but she failed when the deceased snatched it from her which led to the accused’s threat on the deceased’s life. 74. From the evidence adduced above, I am persuaded that the accused had the intention of causing the deceased harm as retribution for what she perceived to be his continuous assault of her daughter. 75. The evidence adduced points to an accused who despite being asked to cool down by PW1 was intent on proving “that she was a man too,” and as such would have to get back at the deceased. The testimony of PW1 was that at about 10pm, she heard the deceased screaming that Winnie and her friends had invaded him. This evidence remained uncontroverted. It is therefore clear to this Court that the Accused had the intention of causing death or grievous harm to the deceased on account of his assault of her child. 76. Although there was no evidence that the accused was present when the deceased was attacked, Iam satisfied that the accused actioned her threats in cohort with others not before the court. Section 21 of the Penal Code deems her to have committed the offence. Section 21 provides that: “When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.” 77. The Court of Appeal considered the doctrine of common intention in the case of Dickson Mwangi Munene & another v Republic [2014] eKLR and stated that: “This provision has been interpreted and the doctrine of common intention dealt with by our courts in several cases. In Solomon Mungai v. Republic [1965] E.A. 363, the predecessor of this Court held that in order for this section to apply, it must be shown that the accused had shared with the other perpetrators of the crime a common intention to pursue a specific unlawful purpose which led to the commission of the offence charged.” 78. In Stephen Ariga & another v Republic [2018] eKLR, the Court of Appeal adopted the ingredients of common intention as established in Eunice Musenya Ndui v Republic [2011] eKLR as follows: (1) There must be two or more persons; (2) The persons must form a common intention; (3) The common intention must be towards prosecuting an unlawful purpose in conjunction with one another; (4) An offence must be committed in the process; (5) The offence must be of such a nature that its commission was a probable consequence of the prosecution of the unlawful purpose. 79. In the instant case, it is clear that the deceased was attacked by more than one person who scattered as the deceased screamed calling out the name of the accused and others thereby attracting PW1 who went to the scene and found the deceased lying in the maize plantation and injured. 80. It is also clear from the evidence adduced herein that the accused was intent on causing the deceased grievous harm as she had earlier on attempted to hit the deceased with a spade but the deceased was able to overpower her. 81. 82. The evidence adduced thus points towards the accused as the one who alongside others not before court unlawfully caused the death of the deceased. I find that there were no other co-existing circumstances capable of destroying the inference of guilt on the accused person’s part. 83. Iam persuaded beyond reasonable doubt that based on the circumstances of this case and the evidence adduced, the accused shared a common intention with the people who attacked the deceased whose intention was to take away the deceased’s life. 84. The next element that must be proved beyond reasonable doubt is whether the accused and others not before court had malice aforethought when they unlawfully killed the deceased. The Eastern Court of Appeal in the case of Republic v Tumbere S/O Ochen [1945] 12 EACA63 in determining whether malice aforethought had been established, considered the following elements:

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(1) The nature of the weapon used; (2) The manner in which it was use; (3) The part of the body targeted; (4) The nature of the injuries inflicted either a single stab/wound or multiple injuries; (5) The conduct of the accused before, during and after the incident. 85. From the evidence adduced herein it is clear that the accused and her accomplices in attacking the deceased set out to cause him grievous harm. PW7 testified that the deceased had defence wounds on the left hand and a compound skull fracture on the right temporal region and further that there was a sharp linear cut on the temporal bone, compound fracture of temporal bone leading to the conclusion that the cause of death was as a result of severe head injury due to sharp penetrating trauma. 86. Taking all the above into consideration, Iam satisfied that the accused had a common intention with others not before this court to cause the deceased grievous harm which they did and as a result, the deceased who received multiple severe injuries on his head succumbed to those injuries. From the defensive injuries, the focus of the attackers was on the head which is a delicate part of the body. I find the that the prosecution has proved beyond reasonable doubt that the accused person herein jointly with others not before court had malice aforethought when they unlawfully killed the deceased Martin Ouma Odhiambo. 87. I find and hold Winnie Atieno Owino Guilty of the offence of murder as charged. I convict her accordingly. Sentence shall be after records, mitigation and a pre-sentence report. DATED, SIGNED AND DELIVERED AT SIAYA THIS 28TH DAY OF MARCH, 2022 R.E. ABURILI JUDGE

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