The Court of Appeal in Kisumu has dismissed an appeal by two men convicted of the murder of a youth leader in Rongo town.
Abern Mbija Agumba and Jared Otieno Mbija sought to overturn their convictions, arguing that the conviction was unsafe because no witness saw the killing.
However, Justices Milton Asike-Makhandia, Chacha Mwita and Byram Ongaya ruled that the two were properly convicted for the killing of Shem Shefa Ongache on February 14, 2016.
Ongache's body was discovered outside Stage Park Bar with multiple panga wounds, including deep cuts to the head.
The court heard that the deceased had been seen drinking cordially with Agumba at the bar in Rongo town.
He was last seen leaving the bar arm-in-arm with the first appellant, followed closely by the second appellant.
Shortly after leaving, Ongache was hacked to death and his body was found behind a bus.
The second appellant fled towards the Deputy County Commissioner’s office, pursued by boda-boda riders, and was apprehended while still clutching a blood-stained panga.
Forensic analysis confirmed that blood on the weapon and on the appellants’ clothing matched the deceased.
“No sooner had they left than word filtered through that the deceased had been killed. PW1 [a patron, Michael Okumu] rushed outside but was restrained or prevented from proceeding to the scene by the 1st appellant who pushed him back into the bar telling him that they were killing a thief whose case had already been reported at Kamagambo police station,” the court heard.
The appellants’ counsel argued that the conviction was unsafe because no witness saw the killing and that crucial witnesses, such as the boda-boda riders, were not called.
They also argued that the panga was never dusted for fingerprints and that DNA sampling was irregularly ordered by a police constable below the rank authorised under the Penal Code.
The appellants further argued that no inventory was prepared for the blood-stained clothes, thereby breaking the chain of custody.
The prosecution urged the court to uphold both the conviction and sentence, maintaining that the exhibits were lawfully obtained and properly analysed and that witness testimonies were credible and consistent in placing the appellants at the scene.
In their ruling, the judges noted that the “last seen” doctrine shifted the evidential burden to the appellants to explain how the deceased met his death.
“The deceased was last seen alive at a local bar in the company of the appellants. Shortly thereafter, he left the bar in their company and was never seen alive again,” the court observed.
“Indeed, shortly thereafter, his body was discovered having been cut severally by a sharp object preferably, a panga. We must point out that the proximity in time between the deceased leaving the bar with the appellants and the subsequent recovery of his body, coupled with the incriminating exhibits, satisfied the conditions for the safe application of the Last Seen With Doctrine,” they added.
The court stated that the evidence pointed to the appellants and was sufficient to sustain a conviction.
“From the evidence tendered it is clear that none of the prosecution witnesses actually saw or witnessed the appellants or indeed any other person kill the deceased. Thus, there was no direct evidence linking the appellants to the death of the deceased. The prosecution case on this aspect therefore hinged wholly and entirely on circumstantial evidence.”
On the alleged violation of fair trial rights under Article 50 of the Constitution, the court found that the appellants were represented by counsel throughout the trial, actively participated in the proceedings, cross-examined witnesses and received adequate disclosure of exhibits.
Regarding sentence, the court noted that while Section 204 of the Penal Code prescribes death as the maximum penalty, the Supreme Court’s decision in Muruatetu declared the mandatory death sentence unconstitutional, affirming judicial discretion. The trial court had imposed a 30-year prison term on each appellant.
“Upon our review of the record, we are satisfied that the trial court exercised sentencing discretion within the confines of law, considered the seriousness of the offence and imposed a custodial term that was neither unlawful nor disproportionate.”
