Automated Summary
Key Facts
On October 17, 2021, in Mbanda sublocation, Kisii County, 16 accused were charged with four counts of murder under sections 203 and 204 of the Penal Code. The victims—Sindege Mayaka, Rael Sigara Onkware, Agnes Moraa, and Jemimah Nyang'ate Minga—were elderly women accused of witchcraft. The prosecution relied on eyewitness accounts, but most defenses were alibis or claims of non-involvement. The court acquitted 12 accused due to lack of conclusive evidence or contradictions in witness testimonies. Four accused (Amos Nyakundi Ondieki 'Sonko', Chrispine Makworo Ogeto, Hesbon Ong'ondi Gichana, and Evans Ogeto Okari) were convicted of murder in counts three and four after the prosecution proved their participation in the killings through consistent witness accounts.
Issues
- Whether the evidence on record displaced the alibi of the accused persons
- Whether the prosecution proved its case against any or all accused persons
- Whether the offence of murder was proved against any or all the accused
Holdings
- Amos Nyakundi Ondieki alias Sonko (accused 1) was found guilty of murder in counts three and four. The prosecution proved malice aforethought and common intention through consistent witness testimonies and his active participation in the attacks.
- The prosecution failed to prove their case against any accused in count two. All accused were acquitted of the murder charge in count two due to contradictory and unreliable witness accounts.
- Peter Angwenyi Gwanga (accused 3) was acquitted in counts three and four due to lack of corroboration for his involvement and contradictions in witness statements.
- Hesbon Ong'ondi Gichana (accused 7) was found guilty of murder in counts three and four. The prosecution proved his participation in dragging victims to the fire and providing fuel, establishing malice aforethought and common intention.
- The prosecution failed to prove their case against any accused in count one. All accused were acquitted of the murder charge in count one due to the lack of credible evidence and inconsistencies in witness testimonies.
- Josphine Moraa Nyankienya (accused 12) was acquitted in counts three and four due to lack of corroboration for her alleged participation in the attacks.
- Evans Ogeto Okari (accused 11) was found guilty of murder in counts three and four. His role in supplying the matchbox and being the central figure in the incident was confirmed, with the prosecution proving his culpability under the common intention doctrine.
- Nelson Chogoro Tumbo (accused 8) was acquitted in counts three and four despite being present at the scene, as contradictions in witness accounts of his actions prevented a conviction.
- Joseph Abuga Mironga (accused 14) was acquitted in counts three and four because contradictory evidence made it unsafe to rely on any witness testimony against him.
- Justine Morara (accused 6), Justine Akiya Tumbo (accused 9), and Roselyne Nyanchama Omweri alias Mellen (accused 13) were acquitted in counts three and four due to absence of evidence implicating them in the crimes.
- Brian Mecha Nyakundi (accused 4) was acquitted in counts three and four due to uncorroborated evidence and contradictions in witness accounts of his participation.
- Vincent George Maseme (accused 15) and Henry Mbambane Angwenyi alias Ototo (accused 16) were acquitted in counts three and four due to uncorroborated evidence and failed alibi defenses.
- Chrispine Makworo Ogeto (accused 2) was found guilty of murder in counts three and four. His defense of illness was contradicted by evidence of his direct involvement in attacking the victims, and the prosecution established malice aforethought and common intention.
- Ronald Ombati Onyonka (accused 5) was acquitted in counts three and four as no reliable evidence linked him to the offenses beyond a single witness's uncorroborated testimony.
Remedies
- 12 accused persons were acquitted due to insufficient evidence to prove their involvement in the murders of Sindege Mayaka and Rael Sigara Onkware in counts one and two, as well as in counts three and four for most of the accused.
- Four accused (Amos Nyakundi Ondieki alias Sonko, Chrispine Makworo Ogeto, Hesbon Ong'ondi Gichana, and Evans Ogeto Okari) were convicted of murder in counts three and four for their participation in the attacks on Agnes Moraa and Jemimah Nyang'ate Minga, based on evidence of their involvement in the assaults and use of fire to kill the victims.
Legal Principles
- An alibi defense does not require the accused to prove it, only to introduce a reasonable doubt, as established in Kiarie vs Republic [1984] KLR. The court held that an alibi introduces a doubt sufficient for acquittal if not disproven by the prosecution.
- The prosecution must prove its case to the required criminal standard of 'beyond any reasonable doubt.' This was emphasized in the judgment, where the court noted that suspect evidence cannot condemn an accused person without meeting this threshold.
- The doctrine of common intention under Section 21 of the Penal Code was applied. The court outlined five ingredients: (1) two or more persons, (2) common intention to prosecute an unlawful purpose, (3) commission of an offence, (4) the offence being a probable consequence of the purpose, and (5) the accused's participation. This was used to convict four accused of murder.
Precedent Name
- Eunice Musenya Ndui v Republic
- Kiilu & Another vs Republic
- Kiarie vs Republic
- Lesarau v Republic
- Ndungu Kimanyi vs Republic
- Vihay s/o Kahevasan v Public Prosecutor
Cited Statute
Penal Code
Judge Name
Kiarie Waweru Kiarie
Passage Text
- I am satisfied that the common intention was proved against accused one, two, seven and eleven. I find each guilty of the offences of murder in counts three and four and convict each of the offences charged therein.
- The requisite mental state for common-law murder, encompassing any one of the following: (1) the intent to kill, (2) the intent to inflict grievous bodily harm, (3) extremely reckless disregard to the value of human life (the so-called 'abandoned and malignant heart'), or (4) the intent to commit a dangerous felony (which leads to culpability under the felony-murder rule).