State v Oloo

her friend Daisy after passing by their home where Daisy insisted that PW2 takes tea before leaving and that as they left, they met three boys; Frank, Steve and another, whom Daisy requested to escort and in the course of their interactions, she exchanged contacts with the one called Steve. 6. PW2 testified that before reaching Ogada, it started raining so Daisy requested them to return and sleep at her home then call their parents and inform them that they were to sleep at her home. She testified that they agreed and then returned to the funeral place and sat under a tent where the three boys left them. It was her testimony that Daisy left her with Mary and Atoti and went to look for dinner. It was her testimony that around 8.30pm, Daisy returned in the company of the 3 boys and informed them to go and eat at the catering tent after which they returned to their original tent. 7. PW2 testified that Steve went to where they were with Atoti and Mary and offered her a green shawl to cover herself with as she was feeling cold. It was her testimony that eventually, she ended up with Steve at his grandmother’s house where they found many people in the house so they went to another incomplete house where they sat talking. 8. It was her testimony that sometime between 2-3am, suddenly, someone appeared talking to Steve and telling him that he went to school long ago and that Steve should not boast that he is a Nairobi person who is bossy. PW2 testified that the person was attacking Steve and though she screamed, nobody responded. She testified that the man was carrying a panga and a rungu and he was hacking Steve. 9. PW2 testified that the person attacking Steve threatened her saying that he had a panga and that should she scream, he would cut her. It was her testimony that she continued screaming as the person threatened her and that the person cut Steve until he fell down then held her and pulled her from that house and led her to a nearby bush where he took the green shawl and spread it on the ground, removed her shorts and raped her without any protection. PW2 testified that the person threatened to kill her if she screamed and that nobody would do anything to him because he was Pablo from Homabay. She testified that the person demanded for her phone number by force, 0745863108, which he took and continued raping her then left her. 10. PW2 testified that she then ran towards the funeral looking for Daisy and when she eventually found her, they proceeded to where Steve was where they found him unconscious and bleeding from the nose after which Daisy called people to come and help Steve. She testified that Frank arrived in the company of other people who started beating her saying that she should reveal what happened to Steve and later on, she was taken to a certain house where she was interrogated. As she had given her phone to Daisy, she was informed that a stranger had called her phone but she, Daisy, did not pick it. 11. PW2 testified that one of her interrogators called the strange number and the person who received it stated that he was Pablo then hang up the phone. She testified that she remembered that the person who raped her had informed her that his name was Pablo. She testified that the people continued beating her insisting that she knew the person despite her denial and that she was then locked up in a room until the police came and took her to Dago Police Station where she was placed in the cells and interrogated. She testified that she later learnt of Steve’s death and that she was taken to Maseno Police Station then to Coptic Hospital for treatment and examination. It was her testimony that she did not know the accused person and that she could not recall the telephone number that called her. She reiterated that what was done to her was not good. 12. In cross-examination, PW2 testified that the incident happened when she was in the company of the deceased. She testified that had it not been for the noise from the Disco Matanga, people could hear her screams. She testified that it was dark when the incident happened.PW2 testified that the owner of the green shawl that she had testified on was the deceased. https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/7442/eng@2024-06-20 2

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13. In re-examination PW2 reiterated that the attacker was armed with a panga and a rungu. 14. PW3 Daisy Atieno Osero testified that on the 29th July 2022 at 4pm she was at JOOTRH Morgue where they had gone to remove her grandfather’s body. She testified that they took the body home at about 6pm. She further testified that she met Penina, PW2, when the body arrived home at night after which they went to sit at the tent where she organized for their dinner. PW3 testified that after dinner, she went to assist in serving visitors and that she looked for Peninna but could not trace her and only met her at 2am when PW2 approached her and told her that she had been with Steve and someone had beaten him at a bush. 15. It was her testimony that she went to the place and found Steve lying down unconscious. She further testified that Steve was taken to the hospital while PW2 was taken to a nearby house and questioned. She testified that a number called PW2’s phone and the guy introduced himself as ‘Pablo’. She further testified that PW2 was locked in a house until the following day when police came and picked her. PW3 testified that she did not know the accused person and had no issue with him. 16. In cross-examination, PW3 testified that she met PW2 at 6pm and that she was with Mary and her other friend after which they met again at 10pm. She testified that they conversed after which she took her to a place where they were to eat dinner. It was her testimony that she later met PW2 at 2am when PW2 informed hr that some people had taken Steve in a bush though PW2 did not say their names. It was her testimony that she called Ian and they proceeded to the scene in the company of Opija and another, who were Ian’s friend. It was her testimony that the accused was not among the friends of Ian. She reiterated that it was dark. PW3 testified that she had never heard or known ‘Pablo’ in the area and that the ‘Pablo’ introduced himself through PW2’s phone. 17. In re-examination, PW3 testified that she met PW2 at 2am at which point she told her that some people had taken Steve at the bush. 18. PW4 Joshua Owino testified that he knew the deceased who was a grandson to his brother and that he came to know of the accused following the incident. It was his testimony that on the 29th July 2022 at 2pm, they prepared to go remove the body of his brother Phillip Owiyo from the mortuary. He testified that they brought the body home and stayed until morning when he heard wailings at his nephew’s house. It was his testimony that he went there and found a stain of blood. He further testified that he also saw PW2 who was with his niece Daisy. PW4 testified that police officers from Dago police station went and examined the scene, took Daisy, Pennina and himself to Dago Police station where they recorded statements. He further testified that he knew the accused and that he had no bad blood with Brian Odhiambo. 19. In cross-examination, PW4 testified that there were many people at the funeral and that he did not see the accused among the group neither did he witness the incident. 20. PW5 Polycarp Lutta Kweyu, a Principal Government Analyst at Kisumu Government Chemist testified that on 2nd September 2021, they received samples by DCI Kisumu West, Maseno by PC Williamson Mwanyotta. It was his testimony that he had a report done by Godwin Khamala Waliama, one of his colleagues who was testifying in another case in Hamisi. He produced the report compiled on the 6th June 2023 as PEx 1a. 21. It was his testimony that they received the following samples. i. Nails of the deceased Steve Joseph Oyugi ‘A’. ii. Samples from the high vaginal swab of Pennina Awino Woto ‘B’. https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/7442/eng@2024-06-20 3

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22. 23. iii. Soil ‘C’. iv. A green shawl ‘D’. v. Bucal swab of Pennina Wuoto ‘E’. vi. Bucal swab of Brian Odhiambo Oloo the suspect ‘F’. PW5 testified that analysis was done and the following were the findings: i. The high vaginal swab showed presence of spermatozoa. ii. The soil had blood of human origin. It was his testimony that DNA profiles were generated and upon comparisons of the DNA profiles, the following conclusion was arrived at: i. The DNA profile in the spermatozoa matched the DNA profile of Brian Odhiambo Oloo the suspect. ii. The blood found in the soil sample matched the DNA profile of Steven Oyugi the deceased. iii. The DNA profile of a woman from the high vaginal swab matched DNA profile of Pennina Woto. iv. The green shawl had no DNA profile. 24. PW5 produced the Report dated 6.6.2023 and the Exhibit Memo dated 2nd September 2022 as PEx.1. (a) and (b) respectively. 25. In cross-examination, PW5 testified that Exhibit F was a swab for the accused and that there was no DNA profile of the accused on the items No ‘A’, ‘C’ and ‘D’. 26. PW6 No 80056 Sergeant James Makobi, a detective with DCI and seconded to Safaricom Limited working with their Liason Security Department based in Kisumu working in the Western and Nyanza regions testified that he received a formal request letters and court orders from the courts and processed the information sought and when called upon to attend court and interpret the information. 27. It was his testimony that he had data records for one phone number and one IMEI number. He testified that the phone number is 0745863108 covering 1st July 2022 to 2nd August 2022 registered in the name of Pennina Wuoto of ID Card No 39062883. 28. He testified that the call data records had several information per column, specifically; Column 1 was the queried number, Column 2 the number in communication with the queried number, Column 3 the record type, whether incoming or outgoing communication, Column 4 the service type whether an SMS or a voice call, the next column for call type whether incoming or outgoing call, the next column for time indicating the year, month, date and time in 24-hour system, the next column for the duration of the call in seconds, the next column for sub-log and sub-log name – locality and name of locality, the next column is for IMEI or modem name, IMEI being a unique 15-digit number identifying each mobile handset, the next column for IMSI number International Mobile Subscriber Identity which is the Sim card serial number and the last column for the ID Card number which was used to register the mobile subscriber. https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/7442/eng@2024-06-20 4

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29. PW6 testified that on the 30th July 2022, at 0316 hours there was an incoming voice call from 073XXXXX for 10 seconds. That again, on 30th July 2022 at 0356hours, Pennina’s number received a voice call from 073XXXXfor 48 seconds. 30. PW6 also produced call data records for mobile phone number 071XXXXX registered in the name of Francis Otieno of ID No 48XXXX covering the period 5th August 2022 to 7th September 2022 with the subscriber communicating from different location. 31. PW6 also produced data records for IMEI number 355463380004380 covering 8th August 2022 to 28th August 2022. The contents and information is arranged in columns. He testified that there were 2 mobile numbers used in that phone, 0711XXXXX registered in the name Jackton Omondi ID No 38XXXXX and 0725XXXXX registered in the name of Patricia Omondi of ID No 36XXXXX. It was his testimony that the two Sim cards were being used interchangeably. 32. PW6 produced an electronic evidence certificate under Section 65 (8) as read with Section 106 of the Evidence Act and that he had given details of the computer and printer used in printing the date records. He produced the data records and electronic evidence as PEx2 a, b, c and d respectively. 33. In cross-examination, PW6 testified that 0739068644 is an Airtel line, further that Francis Otieno was communicating from various places including Nyahera. It was his testimony that the two numbers being used interchangeably were 0711XXXX in the name of Jackton Omondi of ID No 38XXXXX and 072XXXX in the name of Patricia Omondi of ID No 36XXXX. 34. PW7 Kevin Kadenge Amadalu, a clinical officer at Coptic Hospital since 2021 testified that on the 30th July 2022 at around 4.50pm, he attended to a client, PA, who alleged that she had been raped at about 2 – 4am at Ogada in a thicket while at a funeral and that she did not know the attacker who beat another man she was with then dragged her into a thicket, threatened her with a panga and a rungu and raped her. 35. PW7 testified that the client complained of pain in the genital area and when passing urine, that she had not taken a shower and that her last Monthly Period was 20th June 2022 further that she was on contraceptives. He testified that on examination, she was calm, dressed in blue short and a black Tshirt and a hood. That there were no obvious physical injuries on the head, neck, limbs and on genital examination, there were multiple lacerations around vaginal orifice with the largest being on the lower side 0.5 x 1 cm. He further testified that there was no blood or obvious discharge. 36. It was his testimony that he sent her to the laboratory for tests which turned up HIV negative, HVS positive with multiple epithelial cells. He further testified that the pregnancy test was negative and that the client tested negative for Syphilis and Hepatitis B. 37. PW7 testified that from history and examination, he found that the patient was raped and gave her prophylaxis and PEP for HIV as well as an emergency contraceptive pill and painkillers. He testified that he referred her to the police station for further action and that later he filled her P3 form on the 4th August 2022. PW7 produced the treatment notes as PEx3; PRC form as PEx4 and the P3 form as PEx5. 38. In cross-examination, PW7 testified that the approximate age of injuries was about 14 hours. He further testified that from the PRC, the matter was referred by the police on 30th July 2022 and that the patient reported to the police on 30th July 2022 at 7.45am and he examined her at 4.15pm. 39. PW7 testified that the survivor did not know the assailant who raped her and further admitted that the pain on urinating could be caused by anything else other than rape. He further testified that the https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/7442/eng@2024-06-20 5

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hymen was not intact although she was sexually active and had said that she had her last consensual sex in February 2022. It was her testimony that when the victim came, she had not changed clothes or taken a bath and that the clothes were not stained or torn, further that the vagina was tender and painful on touch. He further testified that the survivor had a history of using contraceptives and that there were bruises on labia minora. 40. PW8 No 119646 PC Elijah Ndolo of DCI Kisumu West, Maseno Police station testified that following the demise of No 109281 PC Williamson Mwanyota on 17th November 2022 he took over this case. He produced a copy of the signal sent on the death of the Investigating officer from Stapol Maseno on 17th November 2022 as PEx 6. 41. It was his testimony that after he studied the case file, he found that a murder incident was reported at Dago police station on 30th July 2022 to the effect that the deceased Steve Joseph Oyugi was in company of PAW within Nyahera village where they went to attend a funeral night vigil on 29th July 2022 and that at about 0230 hours, they were attacked by unknown people and the deceased was hit with a crude weapon on his head and he fell unconscious while the lady PA was also raped at a nearby bush. 42. PW8 testified that the mourners assisted the deceased to JOOTRH where they arrived at around 4am but the deceased was pronounced dead on arrival. He testified that during investigations, with the help of Criminal Intelligence Unit (CIU) Kisumu, Brian Odhiambo was arrested on 29th August 2022 and escorted to Maseno police station. He further testified that during investigations, it was reported that when Penina was being raped on that night, she was forced by the rapist to give him her telephone number 0719591751, which she did and that on the same night she was called by a telecom number 073XXXXX, an airtel number and the caller introduced himself to her as the one who attacked them the previous night and subsequently the call data was extracted via investigations and the caller was arrested through phone tracking. 43. It was his testimony that on the 1st September 2022, a search was conducted at the accused person’s residence and the following items were recovered. 44. i. A phone, Hom – made of IMEI No 356XXXXX. The mobile phone had 2 simcards of Airtel for 0739068644, which line was used to call Penina Wuoto. The other simcard had S/No 89XXXXXX. ii. Itel mobile Phone IT2150. Its IMEI No is 3533127495. The phone is believed to belong to the deceased. iii. The National identity card No 38XXXXX belonging to Steve Joseph Oyugi. iv. An identity card number 39XXXXX belonging to Reuben Lwangu. v. An Equity visa card Account No 447XXXXXX for Ruth Shimunzati. The owners of items 4 and 5 were not identified. vi. A brown wallet. PW8 testified that at the scene of crime, a green shawl was recovered and it was stated that Penina Wuoto was raped while lying on the shawl. He proceeded to produce the following exhibits as follows: A ‘Hom’ mobile phone as PEx7, the mobile phone Itel IT2160 as PEx8, the Identity card for Steve Joseph Oyugi as PEx 9, the Identity card for Reuben Lwangu as PEx10, the Equity visa card for Ruth Shimunzali as PEx 11, the brown wallet (Jeep) as PEx12 and the green shawl as PEx13. He produced the Exhibit Inventory as PEx 15. https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/7442/eng@2024-06-20 6

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45. In cross-examination PW8 testified that the ‘Hom’ phone belonged to the accused person as per the phone records while the other items did not belong to the accused person. He testified that there was no eye witness to the incident. He further testified that he produced the shawl as the only item recovered from the scene. He further testified that the inventory was prepared at the residence of Caren Achieng Agengo, the accused’s employer. 46. PW9 Dr. Ombok Lucy a medical doctor from JOOTRH produced an autopsy Report filled by Dr. Owiti his colleague of more than 3 years and whose signature and handwriting she was familiar with. Dr. Owiti had since left JOOTRH for further studies at Moi University hence he was not available to testify without unreasonable delay and unreasonable expense. The defence counsel had no objection to Dr Ombok testifying and producing the AUTOPSY report on behalf of Dr. owiti. 47. It was her testimony that the postmortem was on the body of Steve Joseph Oyugi at JOOTRH on 5th August 2022 at noon. She testified that the deceased was a 22-year-old African male with good nutrition, masculine and about 178cm in height, well preserved, embalmed. 48. She testified that externally, he had depression at the back side of the head, with a stitched wound on the scalp, a swollen scalp at the side of the head and bruises on the right toe and knee while internally, there was massive bleeding between the scalp and skull at the backside of the head and on the sides of the head, with fractures exposing the brain. She testified that other systems were normal. 49. Dr. Ombok testified that as a result of examination the cause of death was found to be severe head injury with depressed skull fractures secondary to a blunt trauma to the head as a result of assault. She testified that death certificate No 1529251 was issued and the postmortem signed. Dr. Ombok testified that a sample of a right nail thumb was taken to the Government Chemist for forensic DNA analysis. She produced the Postmortem Report as PEx 14. 50. In cross-examination, Dr. Ombok testified that the time of death was not indicated in the postmortem Report. She further testified that there was no indication of defensive wounds and that a blunt object was used, from the nature of injuries. The Defence Case 51. The accused person gave a sworn testimony denying the charge of murder and all its particulars. He denied knowing PW2 and stated that he only saw her in court. He testified that he was arrested on 26th August 2022 and that he used to work for Gilbert Ageng’o in Nyahera as a herdsman. 52. The accused testified that at the time of his arrest, he was removing maize from the farm with other workers as it was raining while his employer was sitting at his home. He testified that he was arrested by 15 people who never informed him on the reason for the arrest but that later he was informed that he raped P and killed Stephen Joseph Oyugi. 53. The accused denied knowing Steve Joseph Oyugi and stated that he had stayed in Nyahera for only 9 months and was thus new. It was his testimony that he could not tell if there was funeral in the area since he never left his employer’s homestead. The accused further denied knowing any of the witnesses who testified against him. 54. It was the accused’s defence case that he never attended any funeral on 30th July 2022 and that he was arrested from outside the house at 5pm. He testified that he was only found with his watch and not any other item. He denied knowledge of any inventory and further that he was never identified on a parade nor taken to hospital for tests save mental assessment. The accused testified that he was at a loss as to why he was arrested and charged in this case. https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/7442/eng@2024-06-20 7

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55. The accused testified that he never had any phone and that only his wife has a phone and that he used his boss’s phone to call her. 56. In cross-examination, the accused testified that did not know phone No 0739068644. He denied any sim card being recovered from him or any items being recovered from the house where he lived. He denied that the deceased’s identity card was recovered from his house. The accused reiterated that he did not know Penina as he had his wife. 57. In re-examination, the accused testified that those who arrested him from outside the house never entered the house. It was his testimony that he worked for Willis Odhiambo who was the son to Gilbert Agengo. It was his testimony that it was Willis who paid him his wages. 58. The accused person informed court that no sample was taken from him. Analysis and Determination 59. I have carefully considered the evidence adduced in this case, both for the prosecution and the defence. The accused faces a charge of murder contrary to section 203 as read with section 204 of the Penal Code. That section defines murder as follows: “ Any person who of malice aforethought causes the death of another person by unlawful act or omission is guilty of murder.” 60. To sustain a charge of murder, the prosecution must prove all the elements of the offence of murder beyond reasonable doubt. In this case, the prosecution has to adduce evidence to establish that it was the accused person who caused the death of the deceased by an unlawful act. The prosecution must prove that the unlawful killing of the deceased was with malice aforethought. All these elements, as earlier stated, must be proved beyond reasonable doubt. The essential ingredient for the offence of murder is malice aforethought. The circumstances which constitutes malice aforethought are described under Section 206 of the Penal Code as follows: “ 206. 61. 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 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 from custody of any person who has committed or attempted to commit a felony.” On whether the all the elements of murder have been proved against the accused person beyond reasonable doubt, the deceased’s death is not in doubt and was confirmed vide the testimony of PW9, Dr. Ombok who produced the post-mortem report that showed that the deceased’s cause of death was https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/7442/eng@2024-06-20 8

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severe head injury with depressed skull fractures secondary to a blunt trauma to the head as a result of assault. 62. As to whether the deceased’s death was caused by an unlawful act or omission. Article 26 (1) of the Constitution guarantees every person the right to life. 63. The postmortem report revealed that the externally the deceased had depression at the back side of the head, with a stitched wound on the scalp, a swollen scalp at the side of the head and bruises on the right toe and knee while internally, there was massive bleeding between the scalp and skull at the backside of the head and on the sides of the head, with fractures exposing the brain. These injuries in my view, if caused by an individual, then they amounted to an unlawful act as no-one has the right to deprive another of their life. Furthermore, those are not injuries that were self-inflicted in view of the testimony by PW2 that they were attacked when she was in company of the deceased and that the attacker who was armed with a panga and a rungu assaulted the deceased. In the circumstances, I am persuaded beyond reasonable doubt that the deceased person, Steve Joseph Oyugi died out of an unlawful act. 64. As to whether it was the accused who unlawfully caused the deceased person’s death, PW2 was the only witness who testified as to having seen the deceased’s attacker. It was her testimony that on the material night at around 2-3am, she and the deceased were attacked by an individual whom she could not identify as it was dark. She testified that the attacker was armed with a panga and a rungu and that he used the panga to hack the deceased after which he turned his sights on her and defiled her while threatening to cut her. 65. PW2 further testified that the attacker asked her for her phone number and she surrendered her phone number 074XXXXX to him. It was her testimony that she eventually managed to escape and informed other people to come to her aid and that of the deceased during which time she had surrendered her phone to PW3. 66. PW3 corroborated PW2’s testimony that while she was being interrogated, she had PW2’s phone and that during that time, she received two phone calls on PW2’s phone from an individual who identified himself as Pablo, the name of the person whom PW2 said introduced himself as such when he attacked her and the deceased. 67. PW5, the government analyst testified that he received various samples from the DCI Kisumu West including samples from the high vaginal swab of Pennina Awino Woto, PW2 and a Bucal swab of Brian Odhiambo Oloo the accused herein. It was his testimony that following the tests, it was found that the high vaginal swabs collected from PW2 contained spermatozoa and that the DNA profile of the said spermatozoa matched the DNA profile of the accused person herein Brian Odhiambo Oloo. 68. PW6 produced phone data records of phone number 074XXXXX. He corroborated the testimony of PW3 that on the 30th July 2022 PW2’s phone received a phone call from phone number 073XXXXX for 10 seconds and 48 seconds respectively. In cross-examination, he testified that the phone number 073XXXXX was being used on the 30th July 2022 from various places including Nyahera, where the accused person used to work and reside. 69. PW8 the Investigating Officer testified that following investigations, the accused person was arrested and when a search was conducted at his residence, a number of things were recovered including a simcard carrier of the phone number 0739068644 that had been used to call PW2’s phone on the 30th July 2022. 70. Juxtaposed against this testimony was the accused person’s defence denying the allegations against him and further his information to court that no sample was taken from him. https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/7442/eng@2024-06-20 9

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71. I have considered the evidence adduced before this court both for the prosecution and the defence and it is my finding that the evidence points to the accused as the one who unlawfully killed the deceased. Despite PW2 not knowing the accused, the scientific evidence of the phone record that had called her being located in the house in which the accused lived, albeit that airtel phone did not belong to the accused coupled with the fact that the DNA profile in the spermatozoa extracted from the high vaginal swab of PW2 who testified that she was raped by their attacker and the evidence that she was raped was corroborated by medical evidence adduced in court by PW7 Kevin Kadenge Amadalu, matched the accused’s DNA profile, all point to the accused as the offender herein. I find the defence by the accused person to have been a mere denial although he was not obliged to say anything in defence. 72. The accused person’s employer confirmed that he was arrested at the place and time and there was no contrary evidence that the deceased’s identity card and the phone which was used to call PW2 were recovered from the residence of the accused person. I find no reason to doubt the testimony presented by the prosecution witnesses, which said testimonies corroborated each other. 73. In my view, this was a case where an identification parade was unnecessary as no witness physically recognized the accused person. What linked the accused to the offence was the DNA Report and the items which were recovered from his residence at his employer’s place. There is no reason to doubt that evidence which I find was credible. 74. In the circumstances, I am satisfied that the prosecution has proved that it was the accused who committed the unlawful act which caused the deceased’s death. 75. Finally, as to whether the accused had malice aforethought when he unlawfully killed the deceased, what can be deduced from section 206 (a-e), malice aforethought can be either direct or indirect depending on the peculiarity and facts of each case during 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. 76. In the instant case, evidence adduced by the prosecution shows that the aim of the deceased’s attacker was clearly to cause grievous harm and in addition, to eliminate him. An attack on one’s head or heart is an attack to one’s life. This is further established by the nature of injuries suffered by the deceased which were as follows: depression at the back side of the head, with a stitched wound on the scalp, a swollen scalp at the side of the head and bruises on the right toe and knee while internally, there was massive bleeding between the scalp and skull at the backside of the head and on the sides of the head, with fractures exposing the brain. 77. In the end, I find and hold that the prosecution has proved beyond reasonable doubt that the unlawful killing of the deceased by the accused was with malice aforethought. All the elements of the offence of murder against the accused person are proved beyond reasonable doubt. 78. Accordingly, I find the accused person Brian Odhiambo Oloo Guilty of the offence of murder as charged contrary to section 203 of the Penal Code. I convict him accordingly. 79. Sentence to be pronounced after records, mitigations and victim impact statement. 80. I so order. DATED, SIGNED AND DELIVERED AT KISUMU THIS 20TH DAY OF JUNE, 2024 R.E. ABURILI https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/7442/eng@2024-06-20 10

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JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/7442/eng@2024-06-20 11

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