Republic v Benard Sabuni Omaiyo

6. She stated that on 9/4/2022 at around 5.30pm she instructed her son Isaac (PW6) to go to the house of the accused and look for deceased as she had seen an area near the latrine with freshly dug soil which to her appeared odd. 7. She stated the two went and that her son (PW6) returned after a while and told her that they should go to the police station. She stated that she accompanied her son to the police station where her son reported that a body had been buried in a shallow grave at the compound of the accused. 8. She stated that she accompanied the police to the homestead and the body of the deceased was retrieved upon which she identified the body as that of her sister. 9. She stated that the deceased had no clothes adding that some clothes were retrieved from the pit latrine within the compound. She identified the following clothes; i. Black jacket. ii. A red and white flowered dress. iii. Black petticoat. iv. An underpant. 10. She stated the other clothes recovered included a long trouser which had been used to tie the deceased around the mouth and deceased’s trouser which she had worn as she left home. 11. She further testified that the police searched the accused’s house and recovered a bloodstained jembe. She identified the jembe in court. She also said that an axe was also recovered. 12. She testified that on 9/4/22 she attended a post mortem examination where she identified the deceased’s body. She stated that her deceased sister had been a girlfriend to the accused since 2017 and recalled that though the relationship was good, there was one time when the accused beat the deceased in 2018. She said that her sister (deceased) later forgave the accused and he was released from police custody. 13. She conceded that she was engaged in illicit brew and insisted that the accused and deceased were intimate friends. She clarified that the recoveries of items in the home of accused was done a day after the body of deceased was retrieved from a shallow grave in the compound of the deceased. 14. Robert Wabomba (PW 2) stated that he lives around Kachibora and recalled that on 5/4/2022 at around 8pm he was from home to buy some sugar at the shop and met the deceased on the way and asked if the shop was still open and she told him to hurry up as it was about to close. 15. He stated that he noticed two people following the deceased closely and recognized one of them as the accused herein. He said that he recognized him well through his voice because he was insulting the deceased using vulgar language: “Kuma ya mama yako, Kwenda kabisa”. He stated that as the accused hurled the insult, the other person who he could not recognize just laughed. 16. He stated that after buying the sugar he went back home and did not see the 3 people again on his way back. 17. He stated on 8/4/22 he met PW1 looking for the deceased and he informed her what he had witnessed and that PW1 was very shocked. He stated that the deceased was later found dead at the homestead of the accused and that though he went to the homestead he saw many people but did not see the body of the deceased. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/11320/eng@2025-07-31 2

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18. He stated under cross-examination that when he met the deceased on 5/4/22 at around 8pm, she appeared normal and that the accused and another person were following her at a very close range looking drunk as they talked in very high voices. He stated that the accused is his neighbour and he had not differed with him or had any negative issue about him. He stated that the deceased was dressed in a black jacket and had a dress with some white colour but could not recall the colour well stating that it was dark. 19. Fred Barasa Wanjala (PW3) on his part testified that on 6/4/2022 he met PW1 who told him that she was looking for her sister (the deceased). He stated that he wondered how an adult could get lost. He stated that on 8/4/22 as he was going to mill maize in a posho mill near PW1’s home, PW1 called him and asked him to accompany her son to the house of the accused. He stated that she told him that she had observed a freshly dug place near a pit latrine which had aroused her suspicion. 20. He stated that he accompanied PW6 to the homestead of the accused where they confirmed a freshly site and when he stepped on the place he was shocked when his leg sunk. He stated that they were shocked and returned and informed PW1 to go and report the matter at the police station. 21. He stated that people began gathering and as he explained to them what they had observed they requested to be led to the place which he did. He stated that as they went to the homestead of the accused. The number of people began increasing and they confirmed that all was not well in that homestead. 22. He stated that he together with a group of men decided to go to the shopping centre to look for the accused and they found him at a video café. He stated that they asked the accused to accompany them back home on a motorbike and when they reached his homestead they met many people. He stated that the people then asked the accused to get a jembe and he obliged. 23. He stated that he was led to a place where it was freshly dug and asked to dig it but he declined. He stated that he asked the people why he should do so. He stated that a person in the group who was a police officer told the crowd that he had used a stick and felt something inside and that it was advisable to wait for the police which they did. 24. He stated that the police arrived shortly and took some photographs of the scene and then retrieved the body from the shallow grave. He stated that the son to PW1 then beat the deceased before the police took him to the police vehicle with the body of the deceased. He stated that the accused co-operated throughout the episode and did not resist. 25. Dr Dennis Nanyingi (PW4) the doctor who conducted post mortem examination on the body of deceased stated that on 9/4/2022 he did the autopsy on the body of the deceased after the same had been identified by Roseline Nekesa (PW1) and Lilian Nafula. He stated that the body had decomposed and that the time of death was less than 5 days. 26. The doctor stated that he made the following observations. a. Externally he noted; i. Darkish facial colouration and puffiness. ii. That the eyes were red with pertinent hemorrhage. iii. Defence bruises on upper limb areas. iv. Wounds on the neck which were swollen. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/11320/eng@2025-07-31 3

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v. (b) Peripheral cyanosis of the finger nails. Internally; (i) Lungs collapsed. (ii) Trachea was narrowed at thoracic inlet with bloody mucous. (iii) Heart was collapsed with no blood in chambers. iv. Had a left temporal skull fracture with subgeleal hematoma. v. Hemorrhage on the left brain aspect. 27. The doctor opined that the cause of death was asphyxia secondary to strangulation, head injury secondly to assault by blunt object. He further stated that both injuries noted could independently cause death. He further noted that the liver had shrunk with a scar which however could not have caused the death. He tendered Post Mortem report as Pexhibit 5 and stated that further specimens to wit finger nails, blood and high vaginal swab were taken for further DNA analysis. 28. Lilian Nafula Wangila (PW5) a sister to the deceased stated that on 9/4/22 she accompanied her other sister (PW1) to the Kitale County Hospital Mortuary where she identified the body of her deceased sister before autopsy was conducted on her body. She stated that the body was soiled with injuries to the head, eyes, mouth, neck and chest. She further stated that her deceased sister used to confide to her that she had a Kisii boyfriend known as Sabuni who used to assault her. 29. Isaac Wekesa Mokua (PW6) a son to PW1 testified that his mum (PW1) on 8/4/2022 sent him to the home of the accused to check whether the accused had dug a place in his homestead. He stated that he went to that homestead with PW3 and on arrival PW3 stepped on the freshly dug place and realized that his leg was sinking. He stated that he removed some soil and was surprised to see some clothes. He stated that he told Fred (PW3) that he suspected that someone had been buried in there. 30. He said that they returned home and informed his hum (PW1) what they had seen and proceeded to the police station to report. He stated that the police accompanied them to the scene and exhumed the body. He recalled that police took photographs and there were many people at the scene. He stated the following day the police returned and inspected the house and recovered a jembe and clothes which were recovered from the pit latrine. 31. He further testified that the deceased was a sister to his mum thus an aunt and lived with them. He further stated that he knew that the accused was her boyfriend. 32. Kibet Chirchir (PW7) a village elder for Muiruti village , stated that he received a call from a boda boda operator named Kennedy Kokonya that accused had killed someone at his home and buried the body. He stated that he was told that villagers had proceeded to the Centre to look for the accused. He stated that Ben (accused) was his neighbour and he rushed there to find many people gathered. He stated that the accused was lying down unconscious possibly due to beatings by irate mob. 33. He testified that he witnessed the police arriving taking photographs and exhuming the body. He stated that he recognized the body as that of a sister to PW1 and that he knew her. He added that the police returned the following day, carried out a search and recovered items some of which were blood stained. He stated that he was present at the time of search pointing out that a leather jacket, a jembe and shawl and other items were recovered. He stated that the police also demolished the slab on the pit latrine and used a metallic rod to recover clothes that had been thrown in. He stated that he did not sign the inventory of the items recovered. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/11320/eng@2025-07-31 4

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34. James Omaiyo Onduko (PW8), the father to the accused testified that he left the plot at Muiruti to the accused and relocated to Mapanzi Farm within Kachibora. He stated that his son (accused) used to drink a lot and he had many issues which he did not explain. He only stated that the accused was a troublesome son. 35. He stated that on 8/4/22 at around 5pm, a neighbour called him from Muiruti informing him that many people were at his farm house. He stated he rushed to Muiruti village to find a lot of people there among them was a village elder. He stated that he noted that there was a body buried in a shallow grave and informed the police. He stated that the police went and exhumed a body of a woman he did not know. He stated that the body and his son were taken by the police. He stated that he also accompanied the police the following day to the scene where a number of items were recovered after the police conducted a search. He identified the women clothing recovered. He also stated a jembe and an axe were recovered adding that the clothes recovered in that house were blood stained. He stated that his son (accused) was unmarried, a drunkard and troublesome. 36. Chief Inspector Fredrick .S. Sirengo (PW9) a Scene of Crimes Officer attached to DCI Trans-Nzoia stated that on 8/4/22 he was called to Muiruti village, Kachibora and on arrival he met DCIO TransNzoia East who showed him a body of a female adult lying in a shallow grave infront of the suspect’s house. 37. He stated that there was a blood stained mattress inside the suspect’s house and blood stains on the floor. He stated that he found the suspect lying not far from the body after being assaulted by members of public. He stated that he took 10 pictures in total on the general view of the compound including a pit latrine. He stated that he took a close up view picture of the body in the grave and when it was retrieved took a photo of general view of the body, bed, and mattress. 38. He stated that he supervised processing of the photographs and prepared a report. He tendered the photographs at PExhibit (i) to (x) and certificate as Pexhibit 7. 39. Polycarp Lutta Kweyu (PW10) a Government Analyst based at Government Chemist Kisumu testified and stated that he received samples submitted on 20/4/22 by PC Beatrice Viyagu from DCI TransNzoia. He gave a list of sample items received as; i. Multi-coloured mattress cover marked “C1”. ii. A piece of brown mattress marked “CII”. iii. A pair of black long trouser marked “D1”. iv. A grey/white striped trousers marked “DII”. v. A long sleeved light blue stripped shirt marked “DIII”. He stated that the above items were stated to have been recovered from the house of Bernard Sabuni Omaiyo (accused). 40. He further listed the following samples also recovered; vi. A blue ragged pair of jeans trousers marked “A1’. vii. Finger nails from deceased marked “E1”. viii. Blood sample from deceased marked “EII”. ix. Vaginal swab from deceased marked “EIII”. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/11320/eng@2025-07-31 5

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41. 42. x. A tissue from deceased’s rib “EIV”. xi. Buccal swab from accused “EV”. The expert witness stated that he was requested to carry out DNA profiling to determine the presence and origin of biological evidential material on the items cited. He stated that upon carrying out analysis he came out with the following findings; a. The stains of vaginal swab item EIII tested positive for seminal fluid. b. The jeans trouser item “A1”, mattress item “CII”, mattress cover “C1” were heavily stained with human blood while trouser item “DII” at the inside of left pocket was lightly stained with blood stains of human origin. c. That the trouser item “D1” had no blood of human origin and no DNA profile was generated therefrom. He stated that from the findings he made the following conclusions; i. That the DNA profile generated from stains of vaginal swab “EIII” was a mix DNA of Jane (deceased) and Benard Sabuni (accused). ii. That the DNA profile generated from blood stains on jeans item ‘A1’, mattress cover ‘C1’, piece of mattress ‘CII”, trouser item ‘DII’ are identical and match DNA profile of Jane (deceased). He tendered the analysis report as Pexhibit 8(a) and Exhibit Memo as Pexhibit 8(b) adding that he got the names of both the deceased and accused from the exhibit memo. He stated that the test on vaginal swab was linked to the accused. 43. CPL Stephen Ngeny Simam (PWI0), the investigating officer in the case states that on 8/4/22 he received a call from CIP Peter Omare who instructed him to proceed to Cherangany police station to join other officers over an incident of murder that had been reported there. 44. He stated that he proceeded to Cherangany and joined other officers at the scene of crime. He stated that he found police officers from Cherangany surrounding a shallow grave a few metres from where the suspect was being guarded because he was about to be lynched by irate members of public. He stated that after few minutes crime investigators arrived and proceeded and documented the scene. He stated that photographs were taken from the shallow grave to the house of the suspect adding that there was a pit latrine in the compound. He stated that there were blood stains under the door of the suspect’s house and that other blood stains were inside and outside the pit latrine. He said that he noted more blood stains on the mattress in the house. 45. He stated that they exhumed the body of a female which was naked with injuries to the head and neck. He stated that the body was taken to Kitale Hospital Morgue for preservation and post mortem examination. 46. He stated that on 9/4/22 he revisited the scene accompanied by two of his colleagues in the company of the accused who then was a suspect. He stated they entered his house and recovered the following items; i. A jembe suspected have been used to dig the shallow grave. He stated that the jembe was blood stained and tendered it as Pexhibit 4. (The jembe had black spot on the handle). ii. A black trouser belonging to the suspect Pexhibit 9 which he said had blood stains. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/11320/eng@2025-07-31 6

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iii. A grey white stripped trouser with blood stains belonging to the suspect Pexhibit 10. iv. A blood stained mattress cover Pexhibit11. 47. He stated that he prepared an inventory of all the items recovered in the house of the suspect adding that accused signed it and the same was duly attested. He tendered it as Pexhibit 13(a). 48. He stated that he proceeded to the pit latrine and upon peeping inside saw a piece of cloth and retrieved a black petty coat which he tendered as Pexhibit 1(d), a black jacket identified by family members of the deceased as belong to the deceased as Pexhibit 1(b), a pink pant Pexhibit 1(e), a full multi-colured dress Pexhibit 1(c). He stated that he prepared an inventory of the recoveries from the pit latrine and he tendered it as Pexhibit 3a. 49. He further testified that he prepared an inventory of the clothes belonging to the suspect also recovered from the pit latrine. He stated that he recovered the following which he tendered as exhibits; a. 2 pink bed sheets Pexhibit 2(a) b. Baby shawl checked Pexhibit 2(b). c. Kikoi Pexhibit 14 d. A black marvin Pexhibit 2(c) e. 2 pairs of socks white and red stripped Pexhibit 2(d) He tendered an inventor of the same as Pexhibit 15. 50. He testified that the same day on 9/4/22 he attended a post mortem examination conducted at Kitale County Hospital and noted that the deceased had a fractured skull. He stated that he collected samples from the body to wit blood sample, vaginal swab, cartilage and finger nails chippings for DNA analysis. He stated that the samples together with other samples were sent to Government Chemist Kisumu for DNA analysis by his colleague named Beatrice. 51. He stated that he later recorded a statement from the accused confessing the crime but when he took him to a senior police officer to record the confession he declined to record. He stated that he recorded statements from witnesses and compiled the same before forwarding it to ODPP. 52. When placed on his defence the accused denied on oath to killing the deceased. He stated that on 5/4/22 he was at his workshop at Kachibora and did not go home. He conceded that the deceased was found buried in his compound and her clothes recovered from his pit latrine but denied knowledge of who committed the offence. He stated that he had no grudge against her. 53. He further conceded under cross-examination that his beddings were taken for DNA analysis but could not explain how the deceased’s blood was found on the mattress or how his DNA sample was found in the vaginal swab taken from the deceased. He denied having any intimate relations with the deceased. 54. This court has laid out the evidence tendered by the State and the defence put forward. This is a case of murder and in such a case the prosecution has the burden to prove the following ingredients for the offence to be sustained namely; a. Fact of death and its cause. b. That the unlawful act was committed by the accused (Actus reus). c. Malice aforethought. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/11320/eng@2025-07-31 7

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Fact of death and its cause 55. This ingredient is not disputed in this case. The evidence tendered by the 2 sisters of the deceased PW1and PW5 with respect to viewing her body and identifying it during post mortem examination is corroborated by medical evidence of Dr. Nanyingi (PW4). The doctor carried out autopsy on the body of deceased and concluded that the deceased died either due to strangulation or head injury caused by a blunt object. The doctor tendered Post Mortem report as Pexhibit5. From the evidence tendered by all the prosecution witnesses the body of the deceased was found murdered and buried in a shallow grave on 8/4/22. The fact of death and its cause has been proved beyond any reasonable doubt by the prosecution. Actus reus 56. The prosecution’s case on this element is reliant on circumstantial evidence and to some extent the doctrine of last seen. 57. The prosecution submits that the evidence tendered demonstrates that the doctrine applies and has given a chronology of events and tied the same with the biological evidence tendered showing that the seminal fluid from the accused was found from the vaginal swab taken from the body of the deceased. 58. This court has considered the circumstantial evidence tendered and finds that the evidence tendered indeed strongly links the accused with the offence. The basis of my finding’s is as follows; i. The accused was found on 5/4/22 at around 8pm by PW2 following the deceased very closely while insulting her using vulgar language “kuma ya mama yako kwenda kabisa”. PW2 stated that accused was with another person and that he was insulting the deceased very loudly and he recognized him because he is a neighbour. As it turned out later, that was the last time the deceased was last seen alive. She had left PW1 her sister at around 6.30pm and insisted on going despite reservation expressed by her sister due to the fact that it was late. The clothes that PW2 stated that he saw her with that is a black jacket is the same jacket recovered by the investigating officer (PW11) at the pit latrine of the accused. The jacket was tendered as Pexhibit 1(d). 59. The doctrine of last seen therefore applies in this case. The accused was the last person seen with the deceased when alive. When that doctrine applies, there is a reputable assumption that the accused is connected to the murder of the deceased. The accused in his defence never even attempted to rebut the assumption. 60. The prosecution’s case on the element of actus reus besides relying on the above doctrine also relied on circumstantial evidence. PW1 in her evidence stated that she was aware of her sister’s (deceased) relationship with the accused and so when she failed to come back home on 5/4/22, she went the following day to look for her and on her way she met PW2 who told her he had seen the deceased with accused the previous night. She went to the home of the accused and did not find anyone. She noticed a freshly dug place near the latrine but did not think much of it but later on 9/4/22 she sent her son (PW5) to go and check at the freshly dug site. PW5 in the company of PW3 went and stumbled upon a shallow grave from which the body of deceased was later retrieved. That evidence was corroborated by PW2, PW8 (James Onduko) who is the father to the accused, PW6, PW7, PW9 and PW11. 61. The accused in his defence conceded that the body of the deceased was found in a shallow grave in his compound. He further conceded that her clothes were found stuffed in his pit latrine. His own father (PW8) also confirmed the same. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/11320/eng@2025-07-31 8

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62. The evidence tendered by the prosecution is simply so overwhelming that if someone even entertained the slightest or minutest of doubt, the biological evidence/forensic evidence gathered by PW11 and tendered by Government Analyst (PW10) put the matter to rest. PW10 stated that the blood stains found on the mattress cover (Pexhibit 11), a trouser belonging to the accused (Pexhibit 9) and his shirt, belonged to the deceased as the DNA profile generated therefrom matched DNA profile generated from her blood sample. 63. What is even more indicting is the evidence tendered by the same Analyst indicating that a vaginal swab taken from the deceased tested positive for seminal fluid with DNA profile generated therefrom showing a mix of DNA profile of both the deceased and the accused. 64. The defence has submitted that the lapse of time between when the samples were extracted to the time it reached Kisumu may have compromised the results but the proposition is not supported by any scientific opinion or expertise. 65. The evidence tendered by PW10 was cogent and directly connected the accused with the crime. It shows beyond any shadow of doubt that before the accused committed the heinous crime he had sex with her and then murdered her by hitting her on the head with a blunt object. The doctor (PW4) noted defensive bruises on the limbs of the deceased indicating that she attempted to defend herself. The doctor found temporal skull fracture with subgeleal hematoma and asphyxia secondary to strangulation which means that the deceased may not have died immediately she was hit violently on the head but the accused determined to end her live strangled her. 66. The circumstantial evidence tendered by the prosecution points beyond reasonable doubt the involvement of the accused. In the case of Ahamad Abofathi Mohammed & Anor –vs- Republic (2018)eKLR the court made the following observations regarding circumstantial evidence. “ ………………..the guilty 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 a strong basis for proving the guilt of an accused person just as direct evidence”. Citing with approval the sentiments by Heward CJ in R –vs- Taylor Weaver and Donovan (1928) Cr.APP R21 where the judge stated in part; “……………circumstantial evidence is very often the best evidence. It is evidence surrounding circumstances which, by intense examination is capable of proving a proposition with the accuracy of mathematics……………..”. 67. In a Nigerian decision in Stephen Haruna –vs- The Attorney General of The Federation (2010)IiLaw/ CA/A/86/C/019 the court had this to say in the doctrine of last seen; “ The doctrine of “last seen” means that the law presumes that the person last seen with a deceased bears full responsibility for his death. Thus where an accused person was the last seen to be seen in the company of the deceased and circumstantial evidence is overwhelming and leads to no other conclusion, there is no room for acquittal. It is the duty of the appellant to give an explanation relating to how the deceased met her death in such circumstances. In the absence of a satisfactory explanation a trial court and an appellate court will be justified in drawing the inference that the accused person killed the deceased”. 68. This court finds itself based on the evidence I have highlighted above, in exactly a similar position. PW11 recovered a jembe from the accused’s house which he believed was used by accused in digging https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/11320/eng@2025-07-31 9

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the shallow grave where he buried the deceased. The jembe was tendered as Pexhibit 4. This court noted dark spots on the handle which the investigating officer stated were blood stains. The accused did not deny that the item among other items recovered in the house belonged to him. He offered no explanation on the blood stains on the door of his house, on the floor and on the slab of the pit latrine. 69. The circumstantial evidence tendered by the prosecution forms a chain so complete that there is no escape from concluding that the accused and no one else murdered the deceased. This court finds that the element of actus reus is proved beyond any reasonable doubt. Malice aforethought 70. The accused submits that he had no grudge against the deceased but going by the evidence of PW2 who heard him hurling nonprintable abuses against the deceased in a very loud voice on 5/4/22 at around 8pm, it is quite apparent that the accused was upto no good. His own father (PW8) described his character as “a drunkard and troublesome”. 71. The provisions of section 206 of the Penal Code provides that malice aforethought can be inferred from the nature of weapon used, the manner in which the weapon is used, the part of the body targeted and the nature of injuries inflicted. The doctor’s (PW4) evidence paints a picture of a gruesome murder. The deceased’s skull was fractured and there were further injuries on the neck and signs of strangulation. There is no doubt of the intention of a person inflicting those kind of injuries. As I have observed above it is apparent that after hitting her on the head, the deceased did not die and that explains the signs of strangulation and asphyxia. 72. Furthermore the accused dug a shallow grave and buried her inside naked. He threw her clothes in the pit latrine nearby. This was quite sadistic given that the deceased was his intimate friend. I find that the element of malice aforethought has been proved beyond reasonable doubt. 73. In summary this court finds that the prosecution’s case against the accused is simply overwhelming. He murdered his girlfriend in a most cruel manner and buried her in a shallow grave inside his compound. He is found guilty as charged and is hereby convicted accordingly. DELIVERED, DATED AND SIGNED AT KITALE THIS 31ST DAY OF JULY , 2025. HON JUSTICE R.K. LIMO KITALE HIGH COURT Judgment delivered in open court In the presence of Mr Korir for State The accused Duke/Chemosop- court assistants https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/11320/eng@2025-07-31 10

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