[2015] KEHC 3676 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT ELDORET

CRIMINAL CASE NO.15 OF 2011

REPUBLIC ...................................................................................PROSECTOR

VERSUS

AKENO AKUROT…………..............................................................ACCUSED

JUDGMENT

AkenoAkurot the accused herein was charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. Particulars of the offence are that on 9th Marcy, 2011 at around 0200 hours at Chesesoi village of Komolion Sub-Location in East Pokot District within Baringo County murdered Amechan Long’omoo.

The prosecution called a total of eight witnesses. PW1, Robert Lukwado testified that on the 8th March, 2011 he had gone to spend the night in the house of the deceased. He slept outside while the deceased slept inside with a woman and a child whose name he could not remember. At about 2. 00 a.m. on the 9th March, 2011 he heard the deceased talking and saw someone holding a gun which at the front was tied a torch and was pointing at the deceased who had come out of the house. He testified that he saw the man shoot the deceased who in turn fell to the ground. He then rushed to the house of one Tikapel which was a distance of about 100 metres where he found the said Tikapel talking to one Cheptur. The two had heard the gunshot and woken up. He reported to them that Amechan had been killed. He had left him lying on his stomach. As he spoke to the two,the accused arrived while carrying the child who was in his house. He then called Cheptur and handed over the child to him. He then told him that he had killed somebody and asked them to follow him to the scene where he had committed the murder.

PW1 testified that the accused led them to the house of the deceased up-to the point where the body laid. He asked them to confirm that Amechan had died. The body was lying about 5 metres from the house. The accused then took some soil and poured it on the deceased’s head. PW1 together with Tekapel and Cheptur then left the scene leaving the accused behind and went and reported the matter to the brother of the deceased one Wilson Logomun whose home was about 30 metres away. The latter in turn went and reported to the police. Police officers arrived at about 11. 00 a.m. and took away the bullet cartridge which PW1 identified in court.

According to PW1 he visited the police station on 11th March, 2011 where he found the accused. He testified that he did not know how the accused was arrested. He also did not know why he killed the deceased.

PW 2, Lotikolia Tikapel testified that on the 8th March, 2011 at about 2. 00 a.m. he heard a gunshot that woke him up. His wife too woke up and as they were consulting what was happening, PW1 arrived and told them what had happened namely that Amechan had been killed by Akeno Akurot. Shortly after, Akeno (accused) arrived and informed him that he had killed somebody. He asked them to follow him so that he could show them the person he had killed. At that time he was carrying a child and a gun. He led them to the house of Amechan which was very close to where they were. On arrival they found Amechan dead and using a torch which the accused had confirmed that the body was lying outside his house. They reported the matter to the Chief, one Longamong.

According to PW2 he gathered information that the woman who was in the house with the deceased was once a wife of the accused but the two had separated five years before. On the following morning the police arrived and collected the spent cartridge. PW2’s further testimony was that he could not confirm who between the accused and the deceased had sired the child who the accused was carrying.

PW3,Cheptur Chepwongo corroborated the evidence of PW1 and 2 adding that she was asleep at the material time and was woken up by a gunshot. She then rushed to the house of PW2 where they were later joined by the accused who confirmed that he had killed the deceased. She joined PW1 and 2 to the scene where they confirmed that the deceased had indeed been killed by the accused.

PW4, Wilson Logoma the Assistant Chief of Komolion Sub-location testified that on the 9th March, 2011 at about 2. 00 a.m. while at home was visited by PW1 Robert Lukado who reported to him that Amechan had been killed by Akurot. He requested them to return to the scene but in the morning visited the scene and confirmed the incident. He then reported the matter at Loruk Police Station and to the District Officer. Later the police arrived at the scene and took away the body. Two to three days later the accused was arrested.

According to PW4, the accused killed the deceased because he found him with his separated wife one Chepwongo. At the time of the incident the said Chepwongo was living with her mother and had a relationship with the deceased which would have led to a marriage. He testified that both the deceased and Chepwongo had lived together for 5 to 6 months although the deceased had not paid dowry.

PW5 Reuben Ngilecha police officer attached to the D.C.’s office Loruk recalled that on 11th March, 2011 while he was on leave he learnt that somebody had been involved in murder and had fled to avoid being arrested. The assailant had then come out of his hiding in the forest and returned to his home. He informed the O.C.S. of Loruk Police Station who confirmed to him about the incident. The OCS also asked them to mobilize the youth to arrest the assailant. PW5 in turn informed the area Assistant Chief and with the help of the young the accused was arrested and handed over to the police.

Pw6, Dr. James Akiruga Hamisi the Medical Superintendent of Iten District hospital produced the postmortem report (P.Exihibit 2) in respect of the deceased prepared by Dr. Robert Pokose who had worked under him as a District Medical officer in Baringo. The said Dr. Robert Pokose had conducted a postmortem on the body of the deceased. He formed the opinion that the deceased died of cardiopulmonary arrest secondary to gunshot wound on the right chest.

PW7,Corporal Hassan Noor recalled that on the 9thMarch, 2011 while at Loruk Police Station was informed by the OCS Chief Inspector Sirikwa about the incident and that the accused had been arrested at Komoyon area. He visited the scene together with other police officers where they found the body of the deceased who had been shot dead. He collected a spent cartridge which he produced to court into evidence. According to PW7 the body had a gunshot wound on the right ribs. The O.C.S. who was at the scene called a doctor to examine the body before they could move it to the mortuary. He testified that the postmortem had to be done at the scene because some elders demanded to bury the body because they could not afford mortuary charges. The O.C.S. adhered to their request.

PW8,Police Constable Johnson Changore the investigating officer summed up the evidence of PW1 to 7. In addition, he produced before court the accused’sElector’s Card, Identity Card and a silver metallic torch which he had on the fateful night. In addition he testified that the police were not able to recover the AK47 rifle which the accused used to shoot the deceased. An attempt to search for it in the forest where the accused said he had hidden it were fruitless. He testified that he came to learn that the body of the deceased was examined and a postmortem done.

At the close of the prosecution’s case, the court found that the accused had a case to answer and was put on his defence.

The accused gave a sworn statement of defence. He stated that he used to buy and sell goats as his occupation. He denied killing the deceased. His defence was that on the material date on 09th March, 2011 at 2. 00 a.m. he was on his way home when he was arrested by someone who was coming from Loruk. He said he did not know PW1 who testified that he knew him and saw him killing the deceased. He also denied that he ever owned a gun. He also denied that PW2 saw him quarreling with the deceased. He stated that he was not with a young child on the fateful night. And added that all the witnesses who testified in court lied. His further defence was that he was arrested on 11th March 2011 at Chepkok town by an Administration Police officer as he went to demand for money from somebody to whom he had sold some goats.

In submissions the prosecution submitted that they had proved a case against the accused beyond all reasonable doubts. He submitted that PW1 saw the accused while armed with a gunwith a torch attached to it shoot the deceased. That evidence was corroborated by PW2 and 3 whom the accused told that he had killed the deceased and that they should go and confirm that fact. As such, the element of malice aforethought accompanied by culpable act were proved beyond all doubts.

Further, prosecution submitted that the deceased had died of a gunshot wound on the chest.

In written submissions dated 5th November, 2014, learned counsel for the accused, Mr. Miyenda submitted that the prosecution had not proved their case to the required standard. He submitted that there were doubts as to the authenticity of the medical examination and details contained in the postmortem form purportedly completed and signed by a doctor Pokose. Those doubts remained unresolved because the said doctor was not called to testify. Furthermore, the gun that was the weapon of the murder was not produced in court. In addition the investigating officer Chief Inspector Sirikwa was not called to testify so as to clear doubts surrounding the postmortem report as well as the non-production of the gun. Further, he submitted that the conditions of identification at the material time being at night were not conducive and so it was possible that the accused was not properly identified by PW1.

EVALUATION OF EVIDENCE

I have accordingly considered the evidence on record as well as the respective submissions by the prosecution and counsel for the accused. The issues for determination herein are:-

Proof of the fact and cause of the death of the deceased.

Whether the death of the deceased was caused by an unlawful act or omission on the part of the accused.

If the answer to the second question is in the affirmative, proof that the accused had malice aforethought when he killed the deceased.

As to the fact of the death of the deceased, PW1, 2, and 3 went to the scene and did confirm that the deceased was indeed dead. In addition, PW5 and 7 who were police officers also visited the scene and confirmed the death of the deceased. PW4 who was the area Assistant Chief corroborated the evidence of PW1, 2, 3, 5 and 7 upon visit to the scene. PW4 in addition testified that the postmortem on the body of the deceased was conducted in his presence and that of the OCS. As to the cause of the death of the deceased there is no doubt that it was caused by a gunshot wound as testified by PW1, 3 and 7 who saw the wound penetrating through the right side of the ribs.

As to whether the death was caused by an unlawful act on the part of the accused, it is trite to note that the accused walked into the compound of the deceased while armed with a gun which is a lethal weapon. At the time of the incident PW1 was standing outside the house of the deceased but the accused neither talked to him nor shot him. Instead, he directly aimed at the deceased. Ultimately, this is indicative that the accused had gone to the compound of the deceased with only one intention which was to kill the deceased. In that regard the prosecution was able to prove mensrea or the mental intention by the accused to kill the deceased, which is malice aforethought as defined under 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.

An intention to cause the death or to do grievous harm to any person, whether that person is the person actually killed or not;

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 indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused;

An intent to commit a felony;

An intention by the act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony.

A question was raised by the defence as to the authenticity of the postmortem report. The prosecution had the same produced by PW6 Dr. James AkirugaHamisi on behalf of Dr. Robert Pokose who had filled it. A look at the postmortem report (P.Exhibit 2 ) shows that the exercise was conducted on 24th March, 2011 at Kabarnet District Hospital. At the time, the body was rotten and infested with maggots. The doctor formed an opinion as to the cause of death was due to a gunshot wound. This sharply contradicted the evidence of Corporal Hassan Noor who testified that while he and the OCS were at the scene they called a doctor who examined the body and conducted the postmortem after which the body was released to the elders for burial. This casts doubt how the body thereafter found its way to Kabarnet Hospital mortuary on 24th March, 2011 when another postmortem was conducted by Dr. Pokose. While this did not come out clearly, it is possible that the body wasexhumed on the 24th March, 2011 when the postmortem in the hospital was conducted which explains the presence of the maggots. I must then determine whether the contradiction on how and when the postmortem exercise was conducted vitiates the evidence that it is the accused who killed the deceased. As I had earlier noted there is no doubt that it is the accused person who killed the deceased. PW1 was at the scene when he did it. The accused thereafter daringly told PW1, 2 and 3 to indeed visit the scene and confirm that he had killed one AmechanLongomoo, the deceased herein. And as fate had it, the deceased had died of gunshot wound.

In the case of Ndungu –Vs- Republic (1985) KLR 487, at page 493 the Court of Appeal observed as follows:-

“………in some cases death can be established without medical evidence.Of course there are cases, for example where the deceased person was stabbed through the heart or where the head is crashed, where the cause of death would be so obvious that the absence of a postmortem report would not be fatal. But even in such cases, medical evidence of the effect of such obvious and grave injuries should be adduced.”

In the case of B. W. K. –Vs- Republic, Criminal Appeal (Nakuru) No.143 of 2008, the Court of Appeal in reference to Section 77(3) of the Evidence Act stated as follows:-

“In this regard, the court is not bound by the opinion of the expert in question and the court was at liberty to rely on any other evidence touching on the question at hand. In this case, the child’s direct evidence could still be relied on.”

In the instant case, the direct evidence of PW1 coupled with the corroboration of PW2 and 3 with regard to their testimony that the accused led them to see that he had killed the deceased leaves no doubt that the accused is culpable.

In the end, I find that the prosecution has proved its case beyond all doubts. I find the accused guilty of the offence of murder contrary to Section 203 as read with Section 204 and I convict him accordingly.

DATED and SIGNED this 24th day of June, 2015.

G. W. NGENYE – MACHARIA

JUDGE

DELIVERED at ELDORET this 2nd day of July, 2015

BY: G. K. KIMONDO

JUDGE

In the presence of:-

1. Mr. Miyienda for the accused.

2. Miss. R. N. Karanja for the state.