Director of Public Prosecutions v Richard Mokua Mongare Alias Richard Bateri

formed the opinion that the cause of death was intracranial and subdural haemorrhage due to blunt head injury. 7. In respect of Olipha Bochere, PW1 testified that the body was extensively burnt, with evidence of inhalational burns, indicating that the deceased was alive at the time of the fire. He concluded that the cause of death was multiple organ failure secondary to severe burns. He produced the post-mortem reports in evidence. 8. PW2, Sherry Nyakoe, a minor, testified after a voire dire examination. She stated that Olipha Bochere was her grandmother and Victor Gisemba Momanyi her uncle. She further stated that she knew the accused, Richard Mokua Mongare alias Richard Bateri, as a neighbour. 9. PW2 testified that on the material night, while she was asleep at her grandmother’s house, several people came to the homestead. She stated that some of the people had torches and that a mattress was ignited. She testified that the house was set on fire and that she ran away with another child. 10. PW2 testified that she did not see anyone being killed and did not witness the deaths of either Olipha Bochere or Victor Gisemba Momanyi. 11. PW3, Charles Onduto Moturi, testified that he was a relative of the deceased persons. He stated that on 08th February 2021, he attended the Nyamira County Referral Hospital mortuary and identified the bodies of Victor Gisemba Momanyi and Olipha Bochere to the doctor who conducted the postmortem examinations. He did not witness the incident leading to their deaths. 12. PW4, Sabina Morogwa, a minor, testified after a voire dire examination that the accused was her cousin. She stated that on the material night, a group of people stormed her grandmother’s house and burnt it. She stated that she did not see the accused during the incident, and that her recognition of him was based solely on hearing his voice among the people who stormed the house. 13. PW5, Deborah Bosibori Onditi, testified that Victor Gisemba Momanyi was her husband and Olipha Bochere her mother-in-law. She further indicated that she knew the accused as her neighbour. 14. She recounted that on the night of 25th and 26th January 2021, at about 8.00 p.m., she was at home with Olipha Bochere. When she heard screams from a homestead about one kilometre away, with people shouting words to the efiect of “kill Victor”. She identified the voice as that of Mboya, her father-inlaw’s brother, calling out from a distance. 15. She explained that she went out and locked the gate and thereafter locked herself inside her motherin-law’s house but her mother-in-law then stumbled and fell outside. She further testified that she saw the accused break the gate and cut Olipha Bochere on the neck with a panga. According to the witness, there was moonlight at the time, which enabled her to see and identify the accused, who was in the company of other persons. 16. She further explained that after the accused cut her mother-in-law, she fled the scene fearing for her life. As she ran towards her house, she observed smoke emanating from her mother-in-law’s house. She later learnt that the house had been burnt using petrol and a tyre and that her mother-in-law had died. She proceeded to seek help. 17. She testified that she later found that her husband, Victor Gisemba Momanyi, had been injured on the head and had died. She clarified that she did not witness the killing of her husband and only found him already dead. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19397/eng@2025-03-05 2

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18. She also testified that there had been a dispute between the accused and her mother-in-law over destruction of property, and that about two weeks before the incident there had been allegations that her mother-in-law had caused the death of Mboya’s wife. 19. PW6, CIP David Mursoy, testified that he was the investigating officer in the case. He stated that he received a report of the incident and proceeded to the scene, where he found burnt houses and the bodies of the deceased persons. The witness stated that he recorded statements from witnesses and arrested the accused based on the information received. It was his evidence that no murder weapon was recovered, and that no identification parade was conducted, as the accused and witnesses were neighbours. Defence Case 20. The accused, Richard Mokua Mongare alias Richard Bateri, elected to give sworn evidence in his defence. He testified that on the night of 25th and 26th January 2021, he was at his home. He stated that he had supper and thereafter went to sleep. He denied being present at the scene where the deceased persons were attacked and killed. The accused testified that he learnt of the deaths of Victor Gisemba Momanyi and Olipha Bochere the following day through a radio announcement. 21. The accused testified that he was arrested much later while carrying out his carpentry work and maintained that the allegations against him were untrue. Analysis and Determination Proof of Death and Cause of Death 22. The fact of death of Victor Gisemba Momanyi and Olipha Bochere was not in dispute. The medical evidence of PW1, Dr. Agonga Fredrick, established that post-mortem examinations conducted on both bodies revealed that Victor Gisemba Momanyi died of intracranial and subdural haemorrhage caused by blunt head injury whereas Olipha Bochere died of extensive burns with inhalational injury, leading to multiple organ failure. 23. The Court is therefore satisfied that the prosecution proved beyond reasonable doubt the fact of death and cause of death in respect of both deceased persons. Whether the Deaths Were Unlawful 24. The injuries sustained by both deceased persons were severe, deliberate, and inconsistent with accidental or natural causes. There was no evidence suggesting any lawful justification. 25. The Court therefore finds that the deaths of Victor Gisemba Momanyi and Olipha Bochere were unlawful. Identification of the Accused 26. The Court now turns to apply the principles governing night-time visual identification to the evidence of PW4, Sabina Morogwa, and PW5, Deborah Bosibori Onditi, upon which the prosecution relied to place the accused at the scene. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19397/eng@2025-03-05 3

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27. This Court has recogniseas that evidence of voice identification may be reliable where the witness is familiar with the voice in question. In Karani v Republic [1985] KLR 290, the Court of Appeal stated: “ Identification by voice nearly always amounts to identification by recognition. Yet here, as in any other case, care has to be taken to ensure that the voice was that of the appellant, that the complainant was familiar with the voice and recognised it, and that there were conditions in existence favouring safe identification.” 28. The Court of Appeal in that case further cited Mbelle v Republic (1984) 1 KAR 578 where the appellant had responded “Ni mimi” to a caller, and the Court held that the reception of evidence of identification by voice was safe in the circumstances of that case. 29. Turning to the evidence in the present case, PW4 was categorical that she did not see the accused during the incident. Her testimony was that she recognised the accused solely by his voice from among the people who stormed her grandmother’s house at night and later set it ablaze. However, PW4 did not state the words allegedly spoken by the accused, the duration for which the voice was heard, whether the voice was heard distinctly, or whether it was heard amidst several voices. 30. The Court observes that PW4’s evidence amounted to voice recognition only, made in the course of a chaotic night-time attack involving several people. In the absence of material particulars regarding the words allegedly spoken by the accused, the proximity, duration or audibility of the voice, the Court is unable to conclude that PW4’s purported recognition of the accused was free from the possibility of error. 31. Consequently, her evidence cannot reliably place the accused at the scene or connect him to any specific act committed therein. 32. The principal evidence of alleged visual recognition was given by PW5, Deborah Bosibori Onditi. From her own account, PW5 went out and locked the gate and thereafter locked herself inside her mother-in-law’s house. She testified that her mother-in-law then stumbled and fell outside. 33. PW5 nevertheless went on to assert that she saw the accused break the gate and cut Olipha Bochere on the neck with a panga, adding that there was moonlight which enabled her to see the accused. However, her evidence does not explain how she was able to make this observation while she had already locked herself inside the house, nor does it clarify whether the alleged cutting occurred before or after she secured herself indoors. 34. This lack of clarity as to PW5’s location at the material time, the sequence of events, and the point from which the observation was made introduces an internal inconsistency that goes to the heart of the reliability of her visual recognition. The Court is unable to ascertain with certainty whether PW5 was in a position to see and accurately identify the assailant as alleged. 35. More critically, PW5’s account of the alleged cutting is not supported by the medical evidence. PW1, Dr. Agonga Fredrick, established that the cause of death of Olipha Bochere was multiple organ failure secondary to severe burns, with inhalational injury indicating that the deceased was alive at the time the fire was set. No medical evidence was led to demonstrate the existence of a cut wound to the neck, or that any such injury was fatal or materially contributed to the deceased’s death. 36. PW5 further testified that after the alleged cutting she fled the scene fearing for her life. She stated that as she ran away, she saw smoke emanating from her mother-in-law’s house and later learnt that the house had been burnt using petrol and a tyre. She did not witness who set the house on fire, having already fled the scene. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19397/eng@2025-03-05 4

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37. The Court therefore finds that PW5 did not visually identify any person who allegedly burnt the house in which Olipha Bochere died. Her evidence on the burning of the house was based on information obtained after the fact and not on direct observation. 38. In the absence of reliable identification of the accused as one of the persons who set the house on fire, the prosecution failed to establish a causal nexus between the accused and the act that medically caused the death of Olipha Bochere. 39. As regards the death of Victor Gisemba Momanyi, the medical evidence established that the cause of death was intracranial and subdural haemorrhage due to blunt head injury. PW5 was explicit that she did not witness his killing and only found him already dead. No witness testified to seeing the accused inflict the fatal injury, and no circumstantial or forensic evidence was led to link the accused to the assault that caused his death. 40. When the evidence of PW4 and PW5 is considered cumulatively, it is apparent that the identification evidence was made under difficult night-time circumstances, was internally inconsistent, and lacked corroboration from independent, medical, or circumstantial evidence. 41. The prosecution thus failed not only to place the accused at the scene with the requisite degree of certainty, but also to connect him to the specific acts that directly caused the deaths of either deceased person. 42. In keeping with the principles articulated in Wamunga v Republic [1989] KLR 424, Maitanyi v Republic [1986] KLR 198, R v Turnbull [1976] 3 All ER 549, Roria v Republic [1967] EA 583, and Njeru v Republic [2025] KECA 1096 (KLR), the Court is not satisfied that the conditions for recognition were favourable, that the possibility of error was eliminated, or that a reliable causal nexus between the accused and the deaths was established. 43. Having found that the prosecution failed to establish reliable identification of the accused and failed to prove a causal nexus between the accused and the acts that caused the deaths, the Court is not satisfied that the charge of murder was proved beyond reasonable doubt. Any residual doubt must, in accordance with the law, be resolved in favour of the accused. 44. In the premises, the Court finds that Richard Mokua Mongare alias Richard Bateri was not shown to be responsible for the deaths of Victor Gisemba Momanyi and Olipha Bochere. 45. Accordingly, the court makes the following orders: 1. The accused is hereby acquitted of the ofience of murder on Count I and Count II pursuant to section 322(1) of the Criminal Procedure Code. 2. The accused shall be released forthwith unless otherwise lawfully held. DELIVERED AT NYAMIRA THIS 05TH DAY OF FEBRUARY 2026 WAMAE.T. W. CHERERE JUDGE Appearances Court Assistant - Hilda Accused - Present For Accused - Ms. Shilwatso https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19397/eng@2025-03-05 5

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For the DPP - Ms. Mochama Top of Form Bottom of Form https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19397/eng@2025-03-05 6

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