Republic v Jacob Omondi Bayo

the daughter in law to her co-wife called Mama Boyi. That she was given porridge and Joshua went where she was and sat down near her. That Joshua asked if she was coming back and requested to see her before she leaves so that he could tell her something. That Joshua then left for his house. That the Accused was by then in his house in the same home. That when Joshua reached the Accused person’s door the Accused came out and told the mother Jane that whatever he had said had to be done. PW1 said that from where she was, the deceased had to pass by Accused’s house as his house was behind that of Accused. There was some mud for smearing on the house that they had disagreed over and she left the porridge when she heard noise and went where the noise was. That she found Omondi telling Joshua that he had looked down on his mother. That when she went to get hold of Omondi (Accused) he held her hand and told her to go back where she had come from. That she moved back three steps and on looking back I saw Joshua was down having been cut by Omondi behind the head and he fell. That she shouted as she went back where she had come from. That Omondi continued to cut up Joshua and thereafter Omondi ran away with the weapon. That Police Officers visited the home and took the body. She said it was the Assistant Chief who called police. She said she had not disagreed with the Accused. She said she was bitter because her son was no more. 6. In Cross Examination by Mr. Nyangi she said that when she went to visit she had no information that there was a dispute between Accused and Joshua. 7. That on 11/7/2020 she found Jacob’s mother in the shamba when going to visit my co-wife Angelina. She said Jacob’s mother was Jane Akongo. That when she found Jane Akongo’ she told her that Ojowi looks down on her but she did not tell her how Ojowi had looked down on her yet it is Omondi’s wife who takes Joshua’s wife to the market. She said she did not know what it meant because she did not live there. 8. PW1 said she did not know Emily Atieno Bayo in their family. She said there were women who were married there recently and she did not know their names. 9. She said she heard the Accused and deceased quarreling over some mud for smearing the house but she did not know anything about the mud before because she did not live there. 10. PW1 said further that each person had their own home but there are boundaries of trees. She said that on 11/7/2020 the deceased went to where she was and spoke to her. She said that from where she was seated, to Accused home where offence was committed there was only a fence of trees between the two houses as it was next to where she was taking porridge. That Joshua told her he had something to tell her and she said she to going to his home. PW1 said that Joshua had passed Accused’s house to go to his house which was behind Accused’s house. 11. PW1 said she I heard a quarrel and Accused person’s mother – Jane Akongo’ was telling the deceased that if he could have beaten Nyakabwuoch that day he would not have escaped police. She said Nyakabwoch was a daughter in law to Jane who was married to Ochieng (deceased). PW1 said that Omondi had only a panga. 12. PW2 Rose Atieno Ochieng a resident of Sakwa village and a farmer also testified that she knew the Accused since she got married in that home in 1995 as a neighbors and also her in-law. She said that from her home there is one home before you reach accused’s home. She said the Accused lived with the mother in the same homestead and the homes are fenced with a thorn shrub. She said that from her home she cannot see Accused’s home because there is a home in between. PW2 also said she knew Joshua Otieno who was her husband. She testified that on 11/7/2020 about 1:00p.m she was at home ironing clothes while the deceased had gone to work at a Jaggery. She said that on his way back home he did not reach home because he was killed by Jacob Omondi. She said that when she heard noises she came out and on the way, she met Jacob carrying a panga which was stained with blood and he https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13978/eng@2025-09-30 2

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was coming from where deceased had fallen at the entrance to Accused’s home. She said she did not speak to Jacob but went to the scene and I found Joshua was cut and could not sit. That he was lying on the back and he had injuries on the head, on the back of the neck, shoulder; hand and there were stab wounds on the head. That when Joshua he tried to talk, blood came out and he died. Pw2 said she remained at the scene until police went to pick the body. She said that when she arrived at the scene she found her mother in law, Leonora Adhiambo and Jane Auma. PW2 said she learnt that there was a dispute over some mud for smearing the house.She said she did not know of any dispute but there was a time when the Accused beat her for no reason. 13. In cross examination PW2 said that she knew Emily Atieno Bayo Nyakabwoch as sister in-law to the Accused and that her husband was deceased. She said she knew that Emily had dug out the soil from their land and the deceased went to Emily to tell her that he did not want that place dug up. She said the deceased did not beat Emily. 14. She also said that she was nearby when she heard the noise and before she could reach Jacob’s house, she passed one house. She said she must pass by the Accused’s home to reach her home. She said the Accused’s home is fenced with a thorn shrub with no gate but it had two entrances. PW2 said she did not witness deceased being killed. She said that on the head the deceased had open stab wounds. She said the panga had cut through clothing. She said that when the accused once beat her she did not report to the police and they left it to pass as a family. PW2 said she had no dispute with Accused apart from just that of stopping them to dig that soil. 15. She said she was not aware if Emily was ever beaten by her husband. 16. PW3 POO testified that he came from Kachango in Awendo Sub-County and he was a student at [Particulars Withheld] Secondary School in Form II. He also said he was 17 years old. He recalled that on 11/7/2020 in the morning at about 11:00a.m he went to the field to cut grass for the cows and on return home at 1:00 pm and he started cooking. That he left the house to look for firewood and after a while he heard screams and went to where the scream came from and he found his grandmother with Jacob Omondi who had a panga an axe. That when Jacob saw him, he ran off into a sugarcane plantation. That he tried to look for him but did not find him. PW3 identified Jacob Omondi as the Accused person in this case and was his step uncle. He said they are from same clan and family. He also said that he was the first person to arrive at the scene where Joshua Otieno who is his was killed and was lying on the ground. He saw a cut on the head, the hand and the shoulder. He said he saw Jacob Omondi cut his father and caused the injuries. He said he found the accused, his grandmother and his father at the scene and the grandmother was crying. He said the accused used a panga and axe to cut the deceased and the deceased was bleeding. That when he returned from chasing the accused PW3 found his brother Alex Odhiambo had taken a leso belonging to their mother to cover the deceased before Police Officers went to the scene and took the body to the mortuary. 17. In Cross Examination by Mr. Nyangi PW3 said he saw Accused cut the deceased and he was at home at 1:00p.m next to their house when he heard screams. He said Joshua was injured while at the gate of Jacob’s home. He said he saw the deceased pacing up and down by the gate to Jacob’s home and he was talking but was not abusing. He said he heard the deceased say that once he has refused to do something, that was final. He said that from their home to Jacob’s home is over 100 meters (here to police station) but one can see from their home as there is no fence between their home and Jacob’s home. He also said he knew Leonida Adhiambo who was his grandmother. 18. PW3 admitted that the Accused was from their family and he also Emily who was his aunt and sister in-law to Jacob. He said that Emily’s husband was deceased. He said he was not aware of any dispute between Joshua (deceased) and Emily. He said there were other homes between Joshua’s home and https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13978/eng@2025-09-30 3

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Jacob’s home although they were not very far from each other. He also said he had never heard of any dispute between Accused and his father. PW3 also said that he saw Accused cut deceased with a panga and Axe when he responded to the screams. He said that it was his grandmother Leonida Adhiambo. who was screaming and saying “he has killed, he has killed.” 19. When cross examined by the court PW3 said that the Accused used the axe to cut on one side then took the panga and cut on the other side of the head after which he carried the weapons in both hands as he ran. 20. PW4 Jane Auma Gadi stated that she lived in Sakwa and was a business lady selling tomatoes she said she knew the Accused Jacob Bayo who was her son. She said she also knew Joshua Ocheing Otieno who was son to her brother in laws. 21. She testified that on 10/7/2022 at 7:00p.m she was at the market at Awendo and on return at home at 7: 00p.m she was told by Emily Atieno that Joshua came home and abused her and Emily and hit her with a panga.PW4 said Emily was wife to her son. That she questioned why she was being abused and she was not there. That they slept and on 11th she went to the farm till 1:00p.m. That when she returned home she prepared lunch and served Jacob Omondi who had a girl who had visited him in his house. That Joshua started hurling abuses at her and Jacob from her brother in laws compound which is next to Jacob. She said Joshua’s home was a bit far off. That he left PW4’s home and went to his home only to return with a stick and a panga in the hand. He again abused her and went back to his home. That Joshua went to her home about 6 times abusing and going back. That Joshua went to Jacob’s door while PW4 was also at her door. She said she lived in the same compound with Jacob. That Jacob came out and she also went towards Jacob’s house. That Joshua’s mother known as Leonora Adhiambo (PW1) walked towards Jacob’s house. PW4 told Jacob to go back into the house because he had a visitor and to stop making noise and they were left outside with Joshua and Leonara.PW4 told Leonara to stop Joshua from abusing Jacob who had a visitor. That Joshua started telling her she is foolish and hit her with a rod and she went back to her house and locked herself inside. That Joshua hit the door and windows and the glass broke. That she locked herself until the Chief went to call her to come out and that is when she went outside. That a police officer asked for her phone number through the window but her grandchild told her he saw Leonara take her phone from the window. She said she did not go out because she was hit on the eye and it was swollen. PW4 said police went to the home and said that Jacob had killed Joshua. 22. She also said she did not go out because people were throwing stones at the house and she feared for her life. She said she did not see Jacob that evening. In cross examination PW4 said that on 10/7/2020 Emily told her that Joshua abused her and hit her. 23. Emily was wife to her deceased son and was a widow. She said that on 11/7/2020 she was in her house and they had a visitor in Jacob’s house. She said that Jacob had not quarreled with anybody on that day and it is Joshua who abused them. Joshua started abusing them when from about 50 meters away. she said she heard the abuses well. She said that when Joshua was abusing Jacob, she never went where Joshua was. That Joshua later went into their compound and continued to abuse them, about 6 times. She said Jacob did not come out as he was eating. She said Joshua hit her with a stick on the face and she did not witness Jacob cut deceased. She said it all happened in her home. PW4 said that Jacob came out and told Joshua not to abuse them and she went and told Jacob to go back into the house but she did not know what happened after. She said she does not know if Jacob ever came out of the house. 24. PW5 Emily Atieno testified that she was a farmer and she lived in Sakwa. She said that she knew Jacob Omondi who was her brother-in-law. She said she also knew the deceased Joshua Ochieng who was her brother-in-law. In her testimony in chief PW5 said that on 10/7/2020 at about 11:00a.m she was https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13978/eng@2025-09-30 4

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at her home on Friday when Joshua went to her home and found her washing clothes and asked if she dug soil and she answered in affirmative. That Joshua then asked her who gave her permission to get soil to make her house and she told him told nobody allowed her and that she would not repeat it. That Joshua who was armed with a panga slapped her and asked why she was talking like that. That he then left as he abused her. That the next day she came home in the evening and found something had happened. She said she did not know what happened to Joshua. 25. PW6 Carlpeters Bayo Ngasi testified that he knew the deceased who was son to his brother, He said that Jacob Omondi was his son. It was his testimony that on 11/7/2020 about 2.00pm he received a call from his wife Jane who told him that Joshua had attacked her and had confined her to the house. That he went home at 2:00p.m and found his in the house. That Police arrived and removed his wife from the house. He said that Jacob was not at the home. PW6 further testified that when he arrived he saw all window glasses had been broken and his wife told him that she did not know who broke the glass because she was confined to the house but she suspected it is Joshua who did it. He said that the Police went to pick a body because there had been a fight in his home. The body was in my home. PW6 said he did not observe the body. 26. In cross examination by Mr. Kanyangi Advocate PW6 said that he did not witness Joshua being killed. He said he found Joshua’s body in his compound. He said Joshua had his own home – 6 homes away. 27. PW7 PC Samuel Kilemu Kiragu of DCI Awendo Police Station testified that in July 2020 he was based at Awendo Police Station and he investigated the murder case herein. He said that on 11/7/2020 about 2:30p.m the DCIO IP Marwa asked me to investigate the murder case which was committed in Kachungwa village. He went to the scene with the DCI Awendo – 5Km from the station and found the body of the deceased had cut on the head and shoulder. They found many people at the scene who told them that Jacob cut Joshua. 28. PW8 Dr. Jared Elisha Olando the in charge at Rapcom Medical Centre produced the Post Mortem form PEX No. 1 which was filled by his colleague Dr. Wekesa who examined the body of Joshua Ochieng Otieno at Rapcom medical Centre on 17/7/2020. Dr. Wekesa observed deep cut on the left side of skull measuring 7cm through the ear borne and brain was exposed. There was also a deep cut on the occipital; the right eye had a deep cut 10cm long passing through the basal region; there was also deep penetrating wounds on both shoulders; left hand had deep cut. 29. As a result of the examination Dr. Wekesa formed the opinion that death was caused by excessive hemorrhage due to multiple cuts and brain injury. 30. In cross examination PW8 said he was not present when the postmortem was done but relied on report of Doctor Wekesa whom he had known for 3 years as he had bachelor of medicine in traumatology and he studied in Cuba. He said__ medical Doctors are allowed to do postmortem as they do pathology in their studies. I know he studied medicine pathology is part of course. 31. PW9 xxx CPL Ibrahim Aliyo testified that he was based at Awendo Police Station performing general duties and that on 11/7/2020 at about 3:00p.m he was at the Police Station when P C Kilemi informed him that there was a report of murder which took place at Kayoo. That he accompanied PC kilemi and PC (W)Viola and CPL Shikuku to the scene where on arrival they found a crowd of people and there was lifeless body which belonged to Joshua Ochieng. It was in a home four meters from Accused’s homestead.PW9 testified that the body had multiple cuts and they got information that the deceased was killed by one Bayo who had disappeared in a sugar cane plantation while armed with a machete that was suspected to be murder weapon. They followed foot prints but did not get the accused. That they removed the body to Rapcom mortuary at Awendo.PW9 said the Accused and deceased had domestic quarrel. He also said that on the same day the suspect surrendered himself at Awendo Police Station https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13978/eng@2025-09-30 5

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saying he had killed the deceased and was booked in the cells. That the Accused did not surrender the murder weapon. 32. In cross examination by Mr. Nyangi Advocate for the Accused PW9 said that he visited the scene of murder and the body of the deceased was about 15 meters from Accused’s house within Accused’s homestead.PW9 established that the e deceased’s homestead was about 100 meters from Accused’s house and there is Accused’s mother’s house in between. It was further evidence of PW9 that the Accused’s mother had differed with the deceased for reason that on 10/7/2020 she had gone to deceased’s homestead to fetch some soil forcing deceased to enquire why she took the soil without his permission. That in the evening, deceased’s father was informed of it and they solved out the issue. The following day the Accused got information that his mother (Emily) was being mistreated by deceased. He said that the Accused surrendered himself to police station. 33. When the accused person was placed on defense he gave sworn statement and said that on 10th July 2020 he was at home herding cattle behind their home when he heard noise at home. That the voice he heard was that of Joshua who was exchanging words with Emily his elder brother’s wife. He said his elder brother had died and Emily was a widow. He went home and found Joshua had slapped Emily with a panga. That he inquired what had happened and Emily told him that Joshua claimed she had taken soil from his farm to go and use in smearing her house. That since both were older than him he urged Emily to report to her mother in-law. 34. When the mother returned and the matter was reported to her she said she would report to the Chief the following day. That on 11th July 2020 he was in his home within his father’s homestead at 1.00pm when he heard someone quarreling and insulting his mother. When he got out of the house he found it was Joshua who was passing and insulting his mother. That Joshua passed and went to their uncle’s home where he remained for 30 minutes. That on return he went to the accused person’s mother’s house and started assaulting her while armed with panga and rungu. That when he saw Joshua assault his mother he proceeded there and is mother escaped and entered the house. Joshua then started breaking the windows. That when the accused asked Joshua what he was doing, Joshua turned and said he was going to kill the accused. That Joshua started pursuing the accused and threw the panga at him and it got stuck on the roof to the accused person’s house. That before he could get into his house Joshua hit him with the rungu. That to defend himself he took the panga and used it to cut Joshua and he fell down. That the accused then went to report. He said the panga he used to defend himself is the one Joshua threw at him. He said the incident happened at his father’s homestead. He said Joshua’s home was some distance away and there are some homesteads between Joshua’s home and that of the accused person’s father. He said he had not differed with Joshua prior to this incident. 35. In cross examination the accused said that he recorded his statement with the police. He said that there is a path that the deceased could use to go to his home without going to the accused person’s home but there was also an alternative path that passes near the accused person’s home. He also said that he did talk to Emily at around 6.0pm after the confrontation between her and the deceased. He said it is Emily who told him that Joshua had slapped her using a panga but he did not see Joshua slap Emily. That when Emily went to his mother’s house at 8.00pm to report that Joshua had slapped her he was present. The Accused said further that the road that Joshua ought to have used was 50 meters from his doorstep and Joshua’s home is 200 meters from the accused person’s home. 36. The Accused person also said that the deceased was armed with panga and rungu on 11th July 2020 when he beat his mother with a rungu. That after the accused person’s mother escaped into the house the deceased broke window glasses using the rungu and also wanted to cut him and when he caught up with the accused at his door step he took the panga and used it to defend himself. However, in the accused person’s statement to the police he said he snatched panga from the deceased and used it to https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13978/eng@2025-09-30 6

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defend himself. The accused person denied having cut the deceased severally on the head although the postmortem Report shows the deceased had multiple cuts on the head. He said that he went to the police on his own and he did not escape. 37. DW2 Lilian Adhiambo Obilo testified in support of the Accused that on 11.7.2020 she was at the farm near Jacobs home when she heard noise, when she went she saw Joshua banging the door to Joshua mother’s house and he had already broken windows to the house using a rungu, That she then saw Jacob approach Joshua but Joshua started pursuing Jacob while holding a panga and because of fear she ran back to the farm. That after a short while she heard screams and when she went back to the home she found Joshua lying down. 38. When cross examined by the Prosecuting Counsel Ms. Ikol DW2 said that she was in the farm around 1.00pm and she had a radio from which she confirmed it was 1.00pm. She said she saw broken glasses and Joshua was banging the door. She also said she saw Joshua armed with a panga and he was pursuing Jacob. 39. DW3 Beatrice Atieno, testified that on 11.7,2020 she was cooking in the kitchen around 1:00pm. She said she was in Jacob’s mother’s kitchen. That when she went out she saw Joshua armed with rungu and panga and he was hitting the windows and doors to Jacob’s mother’s house. That when Joshua saw her he wanted to attack but she ran back to the house and remained closed in the house until police arrived. That while she was in the house Joshua continued breaking windows and door and hurling insults. That when police arrived and she came out of the house she found Joshua lying down. 40. She said that Joshua went to the home of Jacob’s parents while armed with rungu and panga and he was breaking glasses and windows and doors.DW3 said Jacob was her uncle’s son. DW3 said she knew the village and Joshua’s home is far from Jacobs’s home as there are 6 homes between Joshua and Jacobs home. 41. In cross examination DW3 said she was in the house and did not see Joshua beat anyone except she saw him beat her mother. 42. Analysis and Determination 1. In consideration of the evidence of prosecution witnesses and in consideration of the accused person’s sworn statement, this court is to determine whether the ingredients of the offence of murder as provided for under Section 203 of the Penal Code Chapter 63 of the Laws of Kenya have been proved beyond reasonable doubt by the prosecution. 2. Section 203 of the Penal Code Chapter 63 of the Laws of Kenya under which the accused persons were charged provides as follows: Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.’ 3. The said provision creates elements of the offence of murder that must be proved by the prosecution beyond reasonable doubt as held in the case of Anthony Ndegwa Ngari v Republic [2014] eKLR to include: i. That the deceased died; ii. That the death was caused by an unlawful act or omission; iii. That the accused person directly or indirectly participated in the commission of the alleged offence; and https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13978/eng@2025-09-30 7

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iv. 43. That there was malice aforethought. The issues for determination are therefore: 1. Whether the death of the deceased, Joshua Ochieng Otieno, was proved. 2. Whether the death was caused by an unlawful act. 3. Whether the accused was positively identified as the assailant. 4. Whether the accused acted with malice aforethought. 5. Whether the defences of self-defence or provocation are available to the accused. 44. On whether the deceased died and whether death was caused by an unlawful act, the prosecution tendered the evidence of PW2, PW3, PW7, PW8 and PW9 who confirmed that the deceased died on 11th July 2020. PW8, a Medical Officer, produced a postmortem report indicating multiple deep cut wounds to the skull, shoulders and hands, and concluded that the cause of death was excessive hemorrhage due to multiple cuts and brain injury. This ingredient was therefore proved to the required standard. PW1 testified that she saw the accused cut the deceased with a panga whereas PW2 saw him leave the scene carrying a blood-stained panga; PW3 stated that he saw the accused cut the deceased with both a panga and an axe. 45. Medical evidence confirmed injuries consistent with sharp objects. There was no lawful excuse on the part of the accused to inflict the said injuries and therefore the unlawful act was established to the required standard. The Accused was positively identified since the offence was committed in broad day light and the Accused was a close relative who lived within the same village and their homes were very close to each other. PW1, PW2 and PW3 all placed the Accused person at the scene. Further, the accused himself admitted to cutting the deceased, though claiming self-defense. 46. On whether malice aforethought was established by the prosecution, Section 206 of the Penal Code defines malice aforethought. It may be inferred from the nature of the weapon, the part of the body targeted, the manner of attack, or conduct before and after as held in the case of in the case of Isaac Kimathi Kanuachobi -vs- R (2013) Eklr it was held: “There is express, implied and constructive malice. Express malice is proved when it is shown that an accused person intended to kill while implied malice is established when it is shown that he intended to cause grievous bodily harm. When it is proved that an accused killed in further course of a felony (for example rape, a robbery or when resisting or preventing lawful arrest) even though there was no intention to kill or cause grievous bodily harm, he is said to have had constructive malice aforethought.” 47. The elements to prove malice aforethought were also settled in the case of Ernest Asami Bwire Abanga alias Onyango v R (CACRA No. 32 of 1990) where the Court held: the question of intention can be inferred from the true consequences of the unlawful acts or omission of the brutal killing, which was well planned and calculated to kill or to do grievous harm upon the deceased.” 48. Further in Republic v Tubere s/o Ochen [1945] 12 EACA 63, the court held that intention must be drawn from surrounding circumstances. The deceased sustained multiple severe cuts to the head, neck and shoulders these in my view were vital parts that were targeted with a view to cause grievous bodily harm or even death as happened in the instant case. 49. Similarly, in Nzuki v Republic [1993] KLR 171, it was held that repeated blows with a lethal weapon on vital organs establishes intent to kill or cause grievous harm. The accused’s assertion that he https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13978/eng@2025-09-30 8

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struck only once is inconsistent with the multiple injuries documented in the postmortem. Malice aforethought was therefore proved. 50. The accused person raised the defense of provocation and claimed that the deceased was armed with a panga and rungu and that he assaulted his mother, and threatened to kill him.DW2 and DW3 partly corroborated that the deceased was aggressive. The law recognizes self-defence where reasonable force is used to avert unlawful attack. However, in Palmer v R [1971] AC 814 and Ahmed Mohammed Omar & 5 Others v Republic [2014] eKLR, it was held that excessive force negates self-defense. In the instant case, the accused continued to cut the deceased after he was felled, inflicting multiple fatal injuries. This was disproportionate to the alleged attack on the accused. 51. On provocation, Section 207 Penal Code provides for reduction to manslaughter where an unlawful killing occurs in the heat of passion caused by sudden provocation. However, as stated in Wanjema v Republic [1971] EA 493, provocation requires loss of self-control. The repeated brutal cuts go beyond sudden reaction. In consideration of the circumstances of this case the Accused cannot rely on selfdefence or provocation. 52. Having considered the totality of the evidence presented by the prosecution and the defense this court finds that all the ingredients of the offence of murder contrary to Section 203 as read with Section 204 were proved beyond all reasonable doubt against the Accused person Jacob Omondi Bayo. 53. Accordingly, I find the accused guilty of murder and convict him under Section 322 of the Criminal Procedure Code. DATED, SIGNED AND DELIVERED AT MIGORI THIS 30TH DAY OF SEPTEMBER, 2025 ANNE C. A. ADWERA ONG’INJO JUDGE In the Presence of; Maureen –Court Assistant Mr. Oimbo – Prosecuting Counsel Accused – P/P Mr. Nyangi Advocate for the Accused https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13978/eng@2025-09-30 9

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