[2019] KEHC 4557 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT ELDORET

CRIMINAL CASE NO. 19 OF 2013

REPUBLIC...................................................................PROSECUTOR

VERSUS

BENARD WEKESA KIMAWACH....................................ACCUSED

JUDGMENT

BENARD WEKESA KIMAWACHis charged with the offence of Murder contrary to Section 203 as read with Section 204 of the Penal Code.

The particulars of this offence are that on the 31st day of August,2011 in Ex-Cullen farm Moi’s Bridge location in Eldoret West District, within Rift Valley province, the accused jointly with another not before court murdered Tom Kandawala.

The prosecution case is that Benard Wekesa Kimawach, the accused herein, is also known in the village as Anania. He is a brother to Fred Simiyu Wekesa. Fred Simiyu Wekesa had left the village to work in Kitale, leaving his wife behind, and the deceased person moved into the house of Fred Simiyu Wekesa to live with his wife. PW-1, the Nyumba Kumi Elder, had been told by the accused person and his brother, Fred Simiyu Wekesa, to ask the deceased to stop the affair he had with the wife of Fred Simiyu Wekesa or they will kill him. PW-2 the son to the deceased was also aware that Benard Wekesa Kimawach had threatened the deceased about the step-mother, but did not have other details regarding the same. The accused, on 31/8/2011 before the commission of the alleged offence, had told PW-3 and PW-1 that it was not right for the deceased to take someone’s wife. PW-3 is the village elder.

PW-2, who is a son to the deceased stated that on 31/8/2011 at about 7. 00 p.m he was called by the deceased at home. He went and they had supper. He thereafter went to sleep. The accused herein and his brother Fred Simiyu Wekesa passed by the road nearby and made some abusive comments in Swahili, that, “wacheni hawa wajinga wakae,” meaning, “leave these fools alone.” The deceased told them not to hurl abuses as there were children. The two alleged the deceased had abused them. They hit the door to the deceased’s house and the deceased woke up and opened the door. Immediately he stepped outside, the accused herein who was armed with a metal rod hit him with it. The deceased fell down as a result. They were inclined to attacked PW-2 but he escaped through

the maize plants. He went to Linnet’s place and told her about the incident. During the alleged attack he was in the house with his father (the deceased) and his step mother. The house had been rented by his father for Kshs.300. His step mother had lived with his father for about 5 years. The deceased had head, neck and ribs injuries. On the material night there was moonlight outside. Inside the house they were using a tin lamp (Koroboi). After the incident his step mother and her 3 children escaped.

PW-1 and PW-3 were told about the incident. PW-1 was told by Ben Simiyu and PW-3 by Rose Chelamai. Both were told that Benard Wekesa and Fred Simiyu had killed the deceased. PW-1 got to the scene at about 8. 30 p.m. He found PW-2 there crying. Others present were Kipchumba and Linnet. The deceased body was lying outside, the face facing downward. It had an injury on the head. PW-3 got to the scene at 9. 00 a.m. He saw the body outside the house. There was however no weapon. Benson Simiyu called the police. The OCS Moi’s Bridge police station received the call and instructed CI Mutuku, CPL Cheptarus and PC Nzioki to visit the scene. They went and collected the body. It was taken to Moi Teaching and Referral Hospital mortuary in Eldoret. PW-4 was

assigned the case to investigate. He recorded witnesses statements. On 5/9/2011 the autopsy was conducted on the body of the deceased by PW-5. He observed that the deceased’s clothes were blood stained. He had laceration on the left side of the hand measuring 3 x 2 cm. There was a defence injury on the right elbow with dislocation of the elbow joint. Internal examination showed massive subdural haemorrage and dislocation of CI verterbral bone. He made the opinion that the deceased died out of a severe head injury, by use of a blunt object. He produced the post mortem report as P-Exhibit 1.

Both suspects had gone underground after the incident. On 11/2/2013 PW-4 was told by an informer that the accused had been seen at Moi’s Bridge. He went there in company of PC Mutinda and PC Muritu. The informer pointed the suspect to them and they arrested him. They took him to the police station and he was charged with the offence. His brother, the other suspect, is still at large.

At the close of the prosecution case this court found that the accused person had a case to answer and accordingly placed him on his defence.

The accused gave sworn testimony and called no witness. He said he lives

in Moi’s Bridge, Ex-Cullen farm. He was a lorry conductor before his arrest. On 31/8/2011 he was from Kilgoris and went home via Eldoret. He got home between 7. 00 p.m and 8. 00 p.m. He never got anyone in his house. He went to see his father who had been unwell. The father told him that his brother Fred Simiyu had also gone to see him and was in his house. After a while Fred Simiyu joined them. He said he was going to the canteen for shopping. He left for the place. He returned with the shopping. They deliberated briefly before he left with his two children for his house with his shopping. The accused’s father then requested the accused to support him get outside for a short call. He assisted him there. While outside, the accused heard screams. The screams were emanating from his brother ‘s house. A girl was screaming saying, “father stop fighting.” The accused’s mother told him there must be a fight at the place. The accused went there and found the deceased on the ground. He asked a neighbour called Isaac what happened, and he was told they fought as the deceased used to visit that home. Fred Simiyu Wekesa had fought with Tom Kandawala, the deceased. The three children who were there had followed their mother in the maize farm. The accused went for them. In the process he met the deceased’s son, the PW-2 in this case.

He was escaping and the accused told him to stop. He screamed, alleging that the accused was out to attack him. Other people told him to stop screaming. He stopped and joined them. The accused then reported to PW-1 that Fred Simiyu had killed Tom Kandawala. Fred Simiyu then arrived and admitted killing Tom Kandawala. They went to the scene the three of them. They found the deceased on the ground and PW1 called the police. The police collected the body. Fred Simiyu was still there. The accused had a cold. He went to change clothes. When he got back to the scene he noted Fred Simiyu had left.

In January, the accused’s parents wanted to sell part of their land to compensate the deceased’s family. The accused opposed the idea as he lives with his mother and what was to be sold was his land. The accused’s brother, Jackson got annoyed with the accused for that reason. He fixed the accused and had him arrested. He alleged that he did not kill the deceased.

This court must now determine as to whether the offence against the accused is proved by the prosecution beyond reasonable doubt.

Section 203 of the Penal Code reveals that an offence of murder is committed where any person, who of malice aforethought causes death of another person by an unlawful act or omission.

Section 206 of the said Act states that malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances: -

(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 indifference 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 flight or escape from custody of any person who has committed or attempted to commit a felony.

The foregoing provisions must be weighed against the evidence on record in establishing whether or not the accused herein committed the alleged offence.

There is reliable evidence by PW-1, the Nyumba Kumi elder, and PW-3 the village elder, that the accused herein, and his brother one Fred Simiyu Wekesa had impressed upon them to inform the deceased to stop having an illicit love affair with Fred Simiyu’s wife or else they’ll kill him. This had happened earlier on the very same day the deceased was killed. If not anything else, the evidence discloses motive for the said murder.

There is only one eye witness to the alleged incident who is PW-2 in this case. He is a son to the deceased. His presence at the scene is not doubted as the accused himself in his evidence placed him at the scene. He alleged he knew the accused and his brother as neighbours. Though on the material night he alleged to had heard the two state, “Wacheni hawa wajinga wakae,” he did not specifically state who between the accused and his brother Fred Simiyu Wekesa, uttered the said words. There is also no evidence that he knew their voices very well and was able to recognize it.

The offence allegedly took place at about 7. 30 p.m of which was at night. PW-2 alleged there was moon light outside which enabled him see and recognize the assailants. However he did not describe the size of the moon that night and the intensity of its light. In the house he stated that they were using a tin lamp (koroboi). This is a low light intensity lamp and it was not stated how it assisted him see outside the house. From cross examination it appeared that he had stated in his statement to the police that they used mobile phone light. These make it nebulous on whether or not there was enough light which would have enabled PW-2 see and recognize the assailants. To this I find that their alleged identification at the scene is not safely reliable.

However, as much every word used in evidence, statement and paragraphs matters; at the end of it the case must be evaluated as a whole. I stated that motive for the offence is well established. After the incident the accused and his brother went underground. The offence was committed on 31/8/2011 and the accused herein surfaced at Moi’s Bridge on 11/2/2013 when he was arrested. His brother is still underground. If they did not commit the offence, or rather if the accused herein did not take part in its commission, he had no cause to

hide. In his defence he alleged it is his brother who killed the deceased. He alleged he was not at home during the day but the evidence of PW-1 and PW-3 shows he was, when together with his brother threatened to kill the deceased unless he stopped the illicit love affair with Fred Simiyu’s wife. His defence that he was fixed as he refused the sale of land by his family to compensate the deceased’s family cannot be true. PW-4 had him as a suspect and was looking for him as well as his brother.

In Sawe vs Republic (2003) KLR 364, the court of appeal held that:-

1. In order to justify on circumstantial evidence, the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypotheses than that of his guilt.

2. Circumstantial evidence can be a basis of a conviction only if there is no other existing circumstances weakening the claim of circumstances relied on.

3. The burden of proving facts which justify the drawing of this inference from the facts to the exclusion of any other reasonable hypothesis of innocence is on the prosecution. This burden always remains with the prosecution and never shifts to the accused.

4. Suspicion, however strong cannot provide the basis of inferring guilt which must be proved by evidence beyond reasonable doubt.

Given that the purported direct evidence of PW-2 is not reliable, the court need consider whether the circumstantial evidence meets the required standard. The accused had the motive to kill the deceased and had expressed the same to PW-1 and PW-3 in this case the very same day the deceased died. The accused went underground after the offence was committed only for him to surface 17 months thereafter. In his defence he placed himself at the scene shortly after the offence was committed and pointed a finger at his brother as the sole culprit. However, his denial of commission of the offence and his explanation that he was not in that area during the day is not true as PW-1 and PW-3 had met him with his brother when they issued the threat. He did not also convincingly explain as to where he was for the period he was alleged to had gone underground. All these facts when weighed together do point irresistibly to his guilt. I am convinced beyond reasonable doubt that he took part together with his brother in murder of the deceased. It is not clear on who between them inflicted the fatal blow, but it is clear they had common intention and acted in concert in murdering him. The threat was to kill him and that is what they did. The accused was of malice aforethought. The offence of murder contrary to Section 203 of the Penal Code, as read with Section 204 of the said Act, is proved against the accused beyond reasonable doubt. He stands convicted of the same.

S. M GITHINJI

JUDGE

DATED, SIGNEDandDELIVEREDatELDORETthis11th day ofJuly, 2019

In the presence of:-

Mr. Miyienda for the accused

Ms Kainga for the state

Ms Sarah - Court assistant

Ms Kainga :- I have no records. He is a first offender.

Mr. Miyienda in Mitigation:-

The accused is remorseful for the offence committed. He has a family. He has been in remand since 2013. I pray he be considered for a non-custodial sentence considering circumstances of the offence and years spent in custody which is about 6 years. The death sentence is no longer mandatory.

COURT:-

I have considered that the convict is a first offender and has been in custody for about 6 years. I have also considered the circumstances under which the offence was committed and other mitigating factors aired by his advocate. I find this a suitable case for consideration of a non-custodial sentence. The convict report will be prepared by the Probation officer.

Mention on 24/7/2019.

SIGNED

S.M GITHINJI

JUDGE

11/7/2019