It was the identification of the attackers by a witness using a small torch in the middle of the night that dealt a blow to 10 Migori residents sentenced to death for killing and burning three people, including a former chief accountant for the Kenya Defence Forces.
Elikana Gondi Syongoh, his driver Moses Magiri Amek and his farmhand Simon Gombe were attacked by a mob on suspicion that they were cattle rustlers but had travelled to Migori to buy a species of bird known as quail.
They were hacked to death by the mob and then burnt beyond recognition on August 12, 2013. A double-cabin car they were travelling in was also set ablaze.
Following the incident, 12 people were arrested, but two were released after the courts dropped the charges.
On March 31, 2017, the then Migori High Court judge, Justice David Majanja, sentenced 10 people to death after finding them guilty of murder.
They were David Ochieng Ojwang, Nicholas Otunga Otieno, Daniel Owino Oganyo, Julius Makambo Obade, Kennedy Kisa Omweri, Julius Otieno Deya, Janes Ogalo Oketch Olendo, Joseph Odhiambo Majiwa, Joseph Keya Omweri and Paul Koi Odeko.
However, the 10 filed a joint appeal against the conviction and sentence, raising four grounds, including that the identification evidence fell below the standards required by law.
Others were that the trial court failed or neglected to consider the alibi defense raised by each of the appellants, and that the death sentence imposed on the appellants was excessive in the circumstances, given that the mandatory death penalty is prohibited.
According to Mr Odumbe, lead counsel for the 10, the backbone of the prosecution’s case rested on the identification evidence of three key witnesses.
He argued that the court should have considered the lighting conditions under which the witnesses made their observations, the distance between them and the perpetrators and whether they had an abstract view.
In the appeal, he also questioned whether the witnesses had the opportunity to see and remember the perpetrators’ facial features, height, hair, skin colour and clothing.
Mr Odumbe also wanted the court to consider the mental, physical and emotional state of the witnesses before, during and after the observation and the extent to which that state affected the witnesses’ ability to observe and accurately remember the perpetrators.
According to the appellants, the incident took place on a dark night, but various witnesses stated that the presence of moonlight enabled them to see what was happening, while others used torches.
Counsel for the appellants argued that a full moon as a source of light only casts an image and that positive identification of a person would require very close proximity to the point of contact or that the suspect be well known to the witness.
Counsel for the appellants argued that since this was a case of a mob “immersed in an orgy of violence, the small chance of identifying a person by voice is a rare possibility among the many voices which we must also take note of”.
It is also claimed that the state of excitement, combined with inadequate lighting, made it impossible for witnesses to identify the actual persons who attacked the deceased.
The prosecution, however, maintained that the witnesses had seen the appellants assaulting the deceased before setting them on fire.
They also stated that they were in close proximity to the assailants and interacted with them during the ordeal.
Although the incident took place at night, there was sufficient light to enable the witnesses to properly recognise and identify the complainants as the assailants and, in addition, the complainants are persons well known to them as they all come from the same village.
Mr John Ojoko Deyangwa, a farmer from Migingo in Migori County and Prosecution Witness 1, narrated how he carried a torch the size of a finger, even though it was a full moon night, which helped him to get a clear view of the incident.
“I have a small torch that I used to see the incident. It has an ordinary battery which cost me Sh20 to buy. It is a small torch about the size of a finger. The first time, the vehicle had all its lights on so I could see clearly,” said Mr Ojoko.
They accused the three of being thieves and when Mr Ojoko challenged them to show evidence that they were thieves, they threatened to kill him.
However, the three-judge panel said that visual identification evidence in criminal cases can lead to miscarriages of justice and it is vital that such evidence is carefully considered to minimise this risk.
In their judgment, they ruled that the evidence showed that even in the darkness alluded to by three witnesses, there was light from other sources, namely the backlights and light from mobile phone torches.
“The conclusion we draw is that there were at least two sources of light on that otherwise dark night. The headlights of the vehicle in which the three deceased were travelling before they were forcibly ejected, and the light from the many torches carried by many in the mob. It is from these two sources of light that the three key identifying witnesses saw the appellants assault the deceased,” read the judgment.
Mr Ojoko was quite an old man and the court was satisfied that there was no reason for him to lie to implicate the accused.
Furthermore, no grudge, ill-will or malice against the accused was suggested to him in cross-examination.
The court also found that all the attackers were well known to the three witnesses. They were from the same village and had grown up together.
In addition, the length of the attack gave the witnesses enough time to see who fatally attacked the deceased.
The incident, from the time the car was stopped to the time the bodies of the deceased were set on fire, lasted from about 9 p.m. to 10 p.m., an hour. During this period, the witnesses interacted and conversed with the attackers, people they knew.
Based on this, the three-judge bench of Hannah Okwengu, Mumbi Ngugi and Francis Tuiyott dismissed their appeal and upheld the death sentence handed down to the 10 by High Court Judge Justice Majanja.
