High Court 19370 of 2025

at the house of one Sarah Moraa where the accused worked. He stated that the deceased finished his shift and started to drink but later refused to settle his bills thereby resulting in an argument with the said Sarah. During the altercation, the Accused, also known as Ng’ang’aduma struck the deceased on the head with a small wooden stick. The deceased started to bleed from the head and Sarah’s brother, one Samuel, chased them away despite the fact that the deceased was bleeding, PW1 stated that the deceased did not appear to be seriously injured. The following day, PW1 learned that the deceased had been found dead. He later recorded a statement. He confirmed that he knew the Accused and noted that he was tipsy at the time of the altercation and that he( the Accused) had affection for Sarah. ii) PW2, Peter Otenyo, a class four pupil and Sarah’s son, testified that he was on the material day at home when at around 7 p.m. his mother served customers, including the accused with alcohol. He witnessed the accused hit the deceased on the head with a stick after the deceased refused to pay for the drinks that he had taken. He stated that the deceased bled from the head. Sarah then asked everyone to leave. He confirmed that his uncle Samuel was present and that he knew the accused JUDGMENT – HCCRC NO. E025 OF 2021 PAGE 2 OF 10

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well. He later learned that the deceased “Mshamba” had died. iii) PW3, Dr. Ombati Timothy Mokua, testified that he conducted a post-mortem on the deceased’s body on 9th September 2021. He noted that the body had a cut wound on the head, facial bruises, and multiple body lacerations. Internally, there was a blood clot (haematoma) in the subdural space of the brain. He concluded that death resulted from severe head injury caused by assault with a blunt object. He produced the post-mortem report as an exhibit. 3. When placed on his defence, the accused, DW1, testified that he was at his home in Charachani, Nyamira County on the material day. He denied committing the offence and stated that the alleged incident date differed from what the witnesses had stated. He claimed that he left Sarah’s home early due to curfew restrictions. He admitted that he knew both Sarah and the deceased but denied hitting the deceased or having any quarrel with him. He emphasized that he only drank outside the house, had no stick, and did not see any weapon produced in court. He also wondered why Sarah was not called to testify. Issues for Determination 4. From the evidence and submissions, I find that the following issues arise for determination: JUDGMENT – HCCRC NO. E025 OF 2021 PAGE 3 OF 10

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a) Whether the death of the deceased, Kepha Ombachi Ochengo, was proved. b) Whether the death was caused by an unlawful act or omission. c) Whether the accused, Erick Onsinyo Kebiro, committed the unlawful act that caused the death. d) Whether the prosecution proved malice aforethought as defined under Section 206 of the Penal Code. Analysis and Determination 1. Proof of Death 5. In Republic vs. Cheya & Another [1973] EA 500 it was held that proof of death is a primary element in a murder charge. Section 203 of the Penal Code stipulates as follows: 230. Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder. 6. The elements of the offence of murder were outlined in the case of Ogunleye Tobi vs. the State, LER [2019] SC. 714/2017 where it was held thus: “It ought to have been established and is a well settled law too, that in a case of murder under Section 316 of the Criminal Code, the prosecution must prove beyond reasonable doubt the underlisted ingredients of the offence; namely: JUDGMENT – HCCRC NO. E025 OF 2021 PAGE 4 OF 10

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(a) That death of a human being has been caused (b) That it was the act of the accused that caused or led to the death of the deceased. (c) That the act or acts were done with the intention of causing death; or (d) The accused knew that death would be the probable consequence of his act or acts.” 7. In the present case, PW3, Dr. Ombati Timothy Mokua, testified that he conducted a post-mortem examination on the deceased on 9th September 2021 and produced the Post-Mortem Report (PExh.1). The report confirmed that the deceased sustained head injuries, facial bruises, and multiple lacerations, with internal bleeding (a subdural haematoma) being the cause of death. 8. This evidence was uncontroverted, and I am therefore satisfied that the death of Kepha Ombachi Ochengo was conclusively proved. 2. Whether the Death Was Unlawful 9. The post-mortem findings confirmed that the deceased died from severe head injuries inflicted by a blunt object. There was no evidence suggesting that the deceased’s death resulted from any lawful justification such as selfdefence or accident. JUDGMENT – HCCRC NO. E025 OF 2021 PAGE 5 OF 10

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10. Accordingly, the court finds that the death was unlawfully caused. In Guzambizi Wesonga vs. Republic [1948] 15 EACA 63, it was held that all homicides are presumed unlawful unless excusable by law. 3. Whether the Accused Caused the Death 11. PW1 and PW2, who were eyewitnesses, testified that the accused hit the deceased on the head with a wooden stick during a drinking session at Sarah Moraa’s chang’aa den, after the deceased refused to pay for drinks. PW1 testified as follows: “Ng’ang’aduma (Accused) came and started hitting the deceased with a small wooden stick, ½ metre long. He hit the deceased on the head and blood started to ooze out. Sarah then asked Mwangi and Ng’ang’aduma to leave. Only Ng’ang’aduma was hitting the deceased. One Samuel, Sarah’s brother, chased them out of the compound. At the time, the deceased was not badly off except for the bleeding on the head. I also left shortly thereafter and I did not see anything amiss….” 12. PW2, a minor and Sarah’s son, corroborated this account, and stated that the accused hit the deceased on the head with a stick, causing blood to ooze. JUDGMENT – HCCRC NO. E025 OF 2021 PAGE 6 OF 10

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13. I find that the testimonies of PW1 and PW2 were consistent and placed the accused at the scene of crime. Both witnesses confirmed that the accused was directly involved in the assault. Both witnesses knew the accused prior to the incident thereby making the possibility that he was a victim of mistaken identity improbable. 14. I have considered the accused’s defence and I note that it consisted of mere denial which did not oust the tangible evidence presented by the eyewitnesses. I also note that the accused admitted that he was present at the den but denied assaulting the deceased, claiming he left early due to curfew restrictions. I find that the accused’s defence did not dislodge the prosecution’s consistent and credible narrative. 15. I further note that even though Sarah Moraa, the owner of the chang’aa den, did not testify, the evidence on record remains cogent and sufficient. My take is that the failure to call her is not fatal to the prosecution’s case, as stated under Section 143 of the Evidence Act, which provides that no particular number of witnesses is required to prove a fact. I find further guidance in the decision in Keter vs. Republic [2007] 1 EA 135, where the Court of Appeal held that the prosecution is not bound to call a superfluity of witnesses if the evidence on record is sufficient. 16. Consequently, I find that the accused’s act of striking the deceased on the head caused the injuries from which the deceased succumbed. JUDGMENT – HCCRC NO. E025 OF 2021 PAGE 7 OF 10

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4. Whether Malice Aforethought Was Proved 17. Under Section 206 of the Penal Code, malice aforethought is established by evidence of: i) An intention to cause death or grievous harm; ii) Knowledge that the act will probably cause death or grievous harm; iii) Intent to commit a felony; or iv) Intent to facilitate the flight of a felon. 18. In the present case, the evidence shows that the accused used a small wooden stick (½ metre long) and struck the deceased once on the head during a quarrel over payment for chang’aa. There was no evidence of premeditation or prior grudge. PW1 described the accused as tipsy, and stated that the assault occurred spontaneously during a heated argument. 19. My finding is that while the blow to the head was fatal, the circumstances suggest that the accused did not intend to kill but rather to assault. However, given that the head is a sensitive and delicate part of the body, the accused must have known that such a blow was likely to cause grievous harm. In Republic vs. Tubere s/o Ochen [1945] 12 EACA 63, it was held that the court considers the weapon used, the part of the body targeted, and the conduct of the accused before and after the act to infer malice aforethought. JUDGMENT – HCCRC NO. E025 OF 2021 PAGE 8 OF 10

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In Nzuki vs. Republic [1993] KLR 171 it was held that mere proof of death and assault is not enough; intention must be proved from the surrounding circumstances. 20. In this case, I find that the accused’s act was unlawful and reckless, but the evidence does not demonstrate a clear intention to kill. The appropriate inference is that the accused had the knowledge that his actions were likely to cause grievous harm, satisfying the lower threshold of malice aforethought under Section 206(b) of the Penal Code. Conclusion 21. Having carefully considered the evidence and the law, this court finds that the prosecution proved beyond reasonable doubt that: i) The deceased died as a result of unlawful injury; ii) The injury was inflicted by the accused; and iii) The accused acted with knowledge that his act was likely to cause grievous harm. 22. Accordingly, I find the accused, Erick Onsinyo Kebiro, guilty of the offence of manslaughter contrary to Section 202 as read with Section 205 of the Penal Code, as the prosecution did not establish malice aforethought requisite for murder. Disposition 23. The accused is therefore convicted of manslaughter under Section 205 of the Penal Code. JUDGMENT – HCCRC NO. E025 OF 2021 PAGE 9 OF 10

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24. Sentence shall be pronounced after mitigation. I direct the Probation Officer to prepare and file a Pre-Sentence before the next mention date. Mention on 2 nd December 2025 for mitigation and to fix a date for sentencing. iv) Orders accordingly. Judgment dated, signed and delivered virtually via Microsoft Teams this 30th day of October 2025. W. A. OKWANY JUDGE JUDGMENT – HCCRC NO. E025 OF 2021 PAGE 10 OF 10

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