Okumu v Republic

PW3 noticed that the motorcycle and the deceased's clothes were bloodstained and that the deceased was bleeding from the left side of his eye. When asked what had happened, the deceased named George Odhiambo Okumu alias Odiso, the appellant, and said that he had pierced him with a spear. PW3 then took the deceased to Kangeso Police Post where the deceased reported the incident and an OB number issued. The deceased was thereafter treated at Rongo Sub-County Hospital and discharged. PW3 stated that the deceased spent the night at his house. 4. The following morning, PW2 Melita Auma Mbogo, the deceased's grandmother, went to PW1's home after being informed of the incident. She found the deceased with a stitched injury around the left eye and spoke to him. He again told her that the appellant had pierced him with a spear. According to PW2, the deceased explained that he had carried the appellant from Opapo to his home and, upon reaching the appellant’s home, the appellant entered the house, picked a spear and stabbed him. PW2 also stated that PW1 had told her that the deceased had told him that the appellant had refused to pay for the motorcycle ride. PW2 arranged for him to be taken home by PW4, Dennis Otieno. 5. PW4, who was PW2's son and the deceased's uncle, subsequently found the deceased asleep at PW1's home at about 10.00 a.m. on 10th October, 2019. On speaking to him, the deceased repeated that the appellant had injured him with a spear, after refusing to pay Kshs.50 for the motorcycle ride from Opapo to his home. PW4 observed that he had a stitched wound on the head and took him home. Later that night, the deceased collapsed. They returned him to Rongo Sub-County Hospital. He was attended to but unfortunately succumbed to his injuries. PW4 later identied his body at the postmortem examination at Rosewood Mortuary on 16th October, 2019. 6. PW5, Nancy Kerubo Orina, a police ocer attached to Kangeso Police Post, testied that she was on duty on the night of 9th October, 2019, when, at about 10.30 p.m., the deceased was brought to the Police Post by a motorcycle rider. The deceased was injured and bleeding from the left side of his eye. When PW5 asked the appellant what had happened, he told her that he had been pierced by the appellant, whom he identied by name. PW5 recorded the deceased's report in the Occurrence Book and advised him to proceed to Rongo Hospital for treatment. The following day, she was informed that the deceased had died. 7. PW7, Kennedy Ochieng Otieno, a Clinical Ocer attached to Rongo Sub-County Hospital, testied that on 9th October, 2019, at about 11.20 p.m., he attended to the deceased, who had been brought to the hospital accompanied by another person. He was informed that the deceased had been assaulted at about 9.00 p.m. at Kangeso village by a person known to him. On examination, PW7 found a bleeding cut wound on the forehead, which was sutured and treated with medication. The deceased was advised to undergo an X-ray and was discharged during the night. The following day, on 10th October, 2019, at about midnight, the deceased was returned to the hospital accompanied by his grandmother and uncle. They reported that his condition had suddenly deteriorated and that he could no longer walk or talk. PW7 examined him and found him very ill. He administered medication and referred him to Migori County Referral Hospital. However, within about 30 minutes, the deceased died before leaving the hospital. His body was subsequently transferred to Rosewood Mortuary the following day. 8. PW6, Dr. Awindo Victor Omolo, a medical ocer attached to Migori County Referral Hospital, gave evidence on behalf of his colleague, Dr. Otieno Joseph, who had prepared the post- mortem report. Dr Otieno was unavailable to attend court, but PW6 stated that he was familiar with his handwriting and signature. The post-mortem examination was conducted on 16th October, 2019, at Rosewood Hospital Mortuary at Rongo. PW6 testied that the deceased was a well-nourished male adult of about 20 years. Externally, there was a sutured cut on the forehead, with no pallor or cyanosis. Internally, the injury had penetrated through the frontal bone into the brain and was associated with a subdural https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1847/eng@2026-09-25 2

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haematoma and intracranial hemorrhage. PW6 stated that, in the opinion of the examining doctor, the cause of death was intra-cerebral hemorrhage due to a penetrating sharp-object injury, which was consistent with an assault. 9. PW9, Polycarp K. Kweyu, a Government Senior Analyst at the Government Chemist, examined exhibits submitted by the Directorate of Criminal Investigations, including a spear, the deceased’s ngernail samples and blood samples from the appellant. He found that the spear had a human bloodstain. DNA analysis established that the DNA prole from the blood on the spear matched that of the deceased’s ngernail samples. The appellant’s DNA was not matched to any of the exhibits provided. He produced his report dated 26th November, 2019 in evidence. 10. PW10, Patrick Wandera, the investigating ocer, testied that he took over investigations after a case of murder was reported at Kamagambo Police Station. He received information that the deceased, Richard Okeyo, had succumbed to injuries and proceeded to the station, where he was issued with the OB entry before going to Kangeso Police Post and thereafter viewed the deceased’s body at Rosewood Mortuary. He visited the appellant’s home, where ocers recovered a blood-stained spear, which was inventoried and forwarded to the Government Chemist together with other exhibits. He also attended the post- mortem examination of the deceased, took photographs of the deceased’s injuries and collected a cartilage and ngernail sample for forensic analysis. The post-mortem established that the deceased died from injuries to the forehead. 11. PW10 testied that investigations led to the arrest of the appellant with the assistance of PW8, Area Chief Samuel Odhiambo Magambo. The appellant was subsequently presented for mental assessment and charged. He produced in evidence the photographs, exhibit memo, inventory and other investigative documents and identied the spear recovered from the appellant’s home as an exhibit. 12. The appellant in his evidence gave sworn evidence and denied involvement in the deceased’s death. He stated that he was a farmer residing at Kamagambo and that, on 5th October, 2019, he left home and went to his mother’s home in Kaluoch, where he remained until his arrest on 12th October, 2019. He stated that he did not know the deceased. He further denied stabbing the deceased, or owning the spear produced in evidence. He stated that the spear was not his and that he never hailed the deceased’s motorcycle for a ride as alleged. He also denied that he had been involved in any dispute or that he had stabbed anyone over a debt. He maintained that he had no knowledge of what caused the deceased’s death. 13. At the end of the trial, the learned Judge (Wendoh, J.) found that the prosecution had proved the charge of murder against the appellant to the required standard of proof beyond reasonable doubt. The learned Judge relied principally on the deceased’s dying declaration, which consistently identied the appellant as his assailant which he repeated to several witnesses including the police, as well as the recovery the blood-stained spear. The trial court held that the declaration was credible and was suciently corroborated by the surrounding evidence. The learned Judge further found that it could be inferred from the nature of the weapon used and the injuries sustained by the deceased that the appellant intended to cause death or grievous harm. The appellant was consequently convicted as charged. Upon conviction, the appellant was sentenced to serve twenty- ve (25) years imprisonment. 14. The appellant, dissatised with the decision of the trial court, led the appeal before us. By a memorandum of appeal dated 31st July, 2025, and a supplementary thereof dated 7th October, 2025, the appellant challenged his conviction and sentence on grounds that: the evidence on record by the prosecution was insucient to sustain a conviction; the evidence on identication was not cogent, and that the appellant was not linked to the murder weapon; the element of mens rea was not established https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1847/eng@2026-09-25 3

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by the prosecution beyond reasonable doubt; and that the sentence imposed was excessive in the circumstances. 15. The appeal was disposed of by way of written submissions. The appellant was represented by learned counsel Mr. Okoth. It was his submission that the prosecution failed to prove the appellant’s guilt beyond reasonable doubt. He challenged the identication of the appellant, pointing to the fact that the incident occurred at night and that the deceased was found to have been drunk. He argued that the circumstances created a real possibility of mistaken identity. Counsel further challenged the evidential value of the spear recovered from the appellant’s alleged home, contending that the recovery was irregular, the house was not properly connected to the appellant, no inventory was prepared, and the spear was not dusted for the appellant’s ngerprints. He also pointed out the absence of independent witnesses linking the appellant to the weapon or scene of crime. 16. On the dying declaration, counsel submitted that although it could establish the actus reus, it did not establish the requisite mens rea. He argued that the circumstances surrounding the declaration required corroboration, which was lacking in the case. Counsel submitted that malice aforethought was not proved. He urged that it was unclear what had led to the fatal assault of the deceased, and that the prosecution had not established the circumstances or intention behind the attack. Thus, while the dying declaration could potentially establish that the deceased was attacked, it did not demonstrate that the appellant intended to kill or cause grievous harm. He therefore argued that, at the very least, the evidence disclosed manslaughter rather than murder, and that the 25-year sentence for murder was excessive in the circumstances. 17. The appeal was opposed. Senior Assistant Director of Public Prosecutions, Ms. Ikol, submitted that the identity of the appellant was rmly established through the deceased’s dying declaration, which was consistently corroborated by PW1 to PW5. She urged that the deceased named the appellant as the person who attacked him with a spear, and explained that the attack followed his refusal to pay the Kshs. 50 fare. On malice aforethought, Ms. Ikol submitted that the deceased sustained serious injuries, including a penetrating wound to the forehead that fractured the frontal bone and penetrated deep into the brain. She explained that the use of a sharp, pointed spear, coupled with the severity and location of the injuries, demonstrated an intention to kill or cause grievous harm. Learned Prosecution Counsel also submitted that the evidence established a motive arising from the appellant’s refusal to pay the fare. She maintained that the prosecution had proved all the ingredients of murder beyond reasonable doubt, and that the conviction was therefore safe. On sentence, Ms. Ikol submitted that the 25-year imprisonment term was lawful and not excessive, and urged that an appellate court should only interfere with sentence where it is manifestly excessive or based on wrong principles, which was not demonstrated in this appeal. She consequently urged us to dismiss the appeal and uphold both the conviction and sentence. 18. This is a rst appeal. As a rst appellate court, it is the duty of this court to subject the evidence adduced before the trial court to fresh scrutiny and re-evaluation, before reaching its own independent determination whether or not to uphold the conviction and sentence of the Appellant. In doing so, this Court is required to bear in mind that it neither saw nor heard the witnesses as they testied and cannot therefore make comments regarding the demeanour of the witnesses (See Okeno vs Republic [1972] EA 32). 19. We have considered the material placed before us, and we nd that the main issue for determination by this Court is whether the evidence on record before the trial court met the legal threshold required to sustain a conviction for the oence of murder against the appellant. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1847/eng@2026-09-25 4

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20. This Court in the case of Anthony Ndegwa Ngari v Republic [2014] KECA 424 (KLR) described the ingredients forming the oence of murder as follows: “ For the oence of murder, there are three elements which the prosecution must prove beyond reasonable doubt in order to secure a conviction. They are: (a) the death of the deceased and the cause of that death; (b) that the accused committed the unlawful act which caused the death of the deceased and (c) that the Accused had the malice aforethought. (See Nyambura & others v Republic, [2001] KLR 355).” 21. In the instant appeal, there is no dispute that the deceased died, or that he died from a penetrating sharpobject injury to the forehead, which fractured the frontal bone and caused intracranial hemorrhage. The medical evidence on record rmly established the cause of death. The issue is whether the appellant was properly identied as the assailant and whether malice aforethought was established. 22. There was no eye witness account in this case. The appellant’s conviction was based substantially on a dying declaration of the deceased and circumstantial evidence. It is well established that a conviction may properly be founded on circumstantial evidence provided that the inculpatory facts are incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of guilt. This Court in the case of Ahamad Abolfathi Mohammed & another v Republic [2018] KECA 743 (KLR) pronounced itself as follows on circumstantial evidence: “However, it is a truism that the guilt 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. Way back in 1928 Lord Heward, CJ stated as follows on circumstantial evidence in R v Taylor, Weaver and Donovan [1928] Cr. App. R 21: -‘It has been said that the evidence against the Applicant is circumstantial. So it is, but circumstantial evidence is very often the best evidence. It is evidence of surrounding circumstances which, by intensied examination is capable of proving a proposition with the accuracy of mathematics. It is no derogation from evidence to say that it is circumstantial.’” 23. In the present case, we nd the appellant’s contention that the evidence of identication was doubtful to be unpersuasive. The deceased did not merely give a description of an unknown assailant. He identied the appellant by name. The deceased was well known to the appellant prior to the fatal encounter. PW1, PW2, PW3, PW4 and PW5 each testied to substantially the same account: that when the deceased was asked what had happened to him, he stated that the appellant, whom he named, had injured him with a spear. Importantly, these were not witnesses who were attempting to identify a stranger from a eeting encounter at night. The evidence was that the witnesses knew both the deceased and the appellant. 24. The circumstances in which the deceased came into contact with the appellant also lend credence to the identication. PW8, Samuel Odhiambo Magambo, the Area Chief, testied that he had known the appellant since birth and that the appellant operated his business next to Opapo Centre. This https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1847/eng@2026-09-25 5

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evidence accords with the deceased’s account that he had ferried the appellant from Opapo to his home, whereupon the appellant entered his house, picked a spear and attacked him. We are alive to the fact that the incident occurred at night. However, this was not a case of identication by a stranger. The deceased interacted with the appellant for a considerable period of time in close proximity and therefore the possibility of mistaken identity was remote. The deceased's statement was one of recognition, and was made repeatedly and consistently to several persons, including the rst report made to the police, shortly after the assault. 25. The deceased's statements fell squarely within the denition of a dying declaration. This Court has severally held that dying declarations are admissible in evidence as an exception to the rule against admissibility of hearsay evidence. Their statutory basis is in Section 33 of the Evidence Act which provides that; “ …when the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question, such statements are admissible whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.” 26. The Courts nevertheless stress the need for caution because such evidence is not subjected to crossexamination. In Watu v Republic [2016] KECA 696 (KLR) the Court observed as follows: “ Notwithstanding section 33(a) of the Evidence Act, courts have consistently held the view that evidence of a dying declaration must be admitted with caution because rstly, the dying declaration is not subject to the test of cross-examination and secondly, circumstances leading to the death of the deceased such as acts of violence, may have occasioned him confusion and surprise so as to render his perception questionable. While it is not a rule of law that a dying declaration must be corroborated to found a conviction, nevertheless the trial court must proceed with caution and to get the necessary assurance that a conviction founded on a death declaration is indeed safe. This Court expressed itself as follows in CHOGE V. REPUBLIC (supra): “The general principle on which a dying declaration is admitted in evidence is that it is a declaration made in extremity when the maker is at a point of death and the mind is induced by the most powerful considerations to tell the truth. In Kenya, however the admissibility of dying declaration need not depend upon the declarant being, at the time of making it, in a hopeless expectation of eminent death. There need not be corroboration in order for a dying declaration to support a conviction but the exercise of caution is necessary in reception into evidence of such declaration as it is generally unsafe to base a conviction solely on the dying declaration of a deceased person.”” 27. In the present appeal, it is our considered view that such caution was observed. The appellant’s conviction did not rest upon an isolated statement made to a single witness. The deceased named the appellant repeatedly and consistently to several persons shortly after the attack. He also gave an account of the circumstances in which the attack occurred. His account was followed by a prompt report to the police and was consistent with the physical injuries subsequently documented by the medical evidence. The medical evidence corroborated the fact of the stabbing. The recovery of a blood-stained spear from the appellant's home provided further circumstantial evidence consistent with the deceased's account. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1847/eng@2026-09-25 6

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The blood found on the spear was matched to the deceased. We do not consider the absence of the appellant's DNA on the spear, or his denial that the spear was recovered from his home, sucient to displace the totality of the prosecution’s evidence against him. 28. The appellant's argument on mistaken identity must be considered against the quality of the identication evidence, which in our opinion, was cogent. The deceased knew the person he named, and his identication was subsequently repeated to several persons who themselves knew the appellant. The consistency of those reports, coupled with the surrounding circumstances, provided the necessary assurance that the deceased was referring to the appellant and not to another person. We are satised that the appellant’s alibi defence was dislodged by the overwhelming circumstantial evidence adduced by the prosecution. 29. Having found that it was the appellant who inicted the fatal injury that caused the deceased’s death, the remaining question is whether the prosecution proved malice aforethought. Malice aforethought is dened by Section 206 of the Penal Code as follows: “ Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances: 30. 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 indierence 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 ight or escape from custody of any person who has committed or attempted to commit a felony.” This Court in Bonaya Tutu Ipu & another v Republic [2015] KECA 335 (KLR) held that: “ It is in rare circumstances that the intention to cause death is proved by direct evidence. More frequently, that intention is established by or inferred from the surrounding circumstances. In the persuasive decision of Chesakit V. Uganda, CR. APP. No. 95 of 2004, the Court of Appeal of Uganda stated that in determining in a charge of murder whether malice aforethought has been proved, the court must take into account factors such as the part of the body injured, the type of weapon used, if any, the type of injuries inicted upon the deceased and the subsequent conduct of the accused person.” 31. The circumstances here rmly established the presence of malice aforethought. The weapon used was a spear, an inherently dangerous weapon. More importantly, the injury was not supercial. The spear penetrated the forehead, fractured the frontal bone and went deep into the brain, resulting in subdural haematoma and intracranial haemorrhage. We agree with the learned trial Judge that the weapon used in this case, the part of the body targeted and the force necessary to inict such an injury as the one sustained by the deceased, are objective indicators that the appellant indeed intended to cause death or grievous harm. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1847/eng@2026-09-25 7

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32. The appellant argued that the prosecution did not establish what precipitated the assault. We do not consider the precise trigger of the confrontation to be determinative. Motive and malice aforethought are distinct concepts. The prosecution was not required to prove why the appellant attacked the deceased in order to establish that he intended to cause death or grievous harm. The alleged disagreement over the Kshs.50 fare may explain the genesis of the confrontation, but the absence of a conclusively established motive would not negate malice aforethought where the objective circumstances of the assault demonstrate the requisite intention. Section 9(3) of the Penal Code provides thus: “ Unless otherwise expressly declared, the motive by which a person is induced to do or omit to do an act, or to form an intention, is immaterial so far as regards criminal responsibility.” 33. Accordingly, we nd no merit in this appeal. The appeal against conviction fails and is hereby dismissed. We also nd no basis upon which to interfere with the sentence imposed by the trial court. The oence in question is of a grave and serious nature, involving aggravating circumstances, and resulting in the death of the victim. The learned Judge in awarding the sentence, considered the appellant’s mitigation as well as the aggravating circumstances of the case. We nd that the custodial sentence imposed on the appellant was lawful and founded upon proper sentencing principles. The appeal against sentence is likewise dismissed. DATED AND DELIVERED AT KISUMU THIS 25TH DAY OF SEPTEMBER, 2026. ASIKE-MAKHANDIA ....................... JUDGE OF APPEAL H. A. OMONDI ....................... JUDGE OF APPEAL L. KIMARU ....................... JUDGE OF APPEAL I certify that this is a true copy of original. DEPUTY REGISTRAR. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1847/eng@2026-09-25 8

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