[2022] KEHC 15903 (KLR)

Republic v Bii (Criminal Case 29 of 2016) [2022] KEHC 15903 (KLR) (11 November 2022) (Judgment)

Neutral citation: [2022] KEHC 15903 (KLR)

Republic of Kenya

In the High Court at Kericho

Criminal Case 29 of 2016

AN Ongeri, J

November 11, 2022

Between

Republic

Prosecutor

and

Japhet Bii

Accused

Judgment

1. The accused person in this case Japheth Bii (hereafter referred to as the accused person) is facing a charge of Murder Contrary to Section 203 as read with Section 204 of the Penal Code.

2. The particulars of the charge were that on 29/7/2016 at Kenegut Village in Kericho Sub-County within Kericho County, the accused person Murdered Samwel Kosgei.

3. The Accused Peron pleaded not guilty to the charge. The prosecution called Eleven (11) witnesses whose evidence in summary was as follows:-

4. PW.1 – Winnie Chepkorir Kosgey said on 27/7/2016, she was at the home of the Accused Person at 3 pm when the Accused Person told her that he would kill her husband (the deceased).

5. PW.1 said she had gone to visit the accused person’s mother who was her friend. The accused person said the deceased had assaulted him. On 28/7/2016, PW.1 told the deceased what the Accused Person had said but he did not believe her.

6. The following day on 29/7/2016 at 3 pm, PW.1 said the deceased drove their animals to the river. While she was at home, she heard screams and ran towards them. She saw her husband who had been cut. She was told the Accused Person had cut him.

7. PW.2 – Reuben Chepkwony Said on 29/7/2016, while he was at his home he heard screams and ran to the scene where the screams were coming from. He was told the Accused Person had cut Samwel Kiprono Kosgey, the deceased herein.

8. PW.2 said the deceased was lying on the roadside with a deep cut on the neck and his whole head was covered with blood. PW.2 accompanied the deceased to Hospital where he discovered that the deceased had died.

9. PW.4 Samuel Kipkorir Koech, the Chief of Kenegut Location said on the material day, he was coming from Tengecha Girls Secondary School when he was called and he was informed that Japheth Bii (the Accused Person) had assaulted SAmuel Kiprono Kosgei (the deceased).

10. PW.4 went to the home of the accused person where there were many people who wanted to lynch the Accused Person. PW.4 requested the accused person to open the door and he was handcuffed by one AP Officer and taken to Kericho Police Station.

11. PW.1 to PW.4 testified before Hon. Lady Justice Mumbi Ngugi (as she then was). I took over the case after complying with Section 200 of the Criminal Procedure Code.

12. PW.5 – David Kiplangat Bore said on 29/7/2016 at 5 pm, he was going to the river when he heard screams. He ran to the scene and found the deceased had been cut. He saw the Accused Person running away.

13. PW.5 chased the Accused Person with other members of the Public and he locked himself in his father’s house. PW.5 said they waited outside the house until police arrived and arrested the Accused Person.

14. PW.6 – Henry Kiptoo Sang, the Government Analyst based at Nairobi produced a Report prepared by his colleague LAwrence Kinyua Muthuri who proceeded on study leave in Hungary.

15. PW.6 worked with Lawrence for 7 years and is familiar with his handwriting. He said Lawrence received the following samples:-i.A – Blood Sample of the deceased Samuel Kosgei.ii.B – Blood Sample of the Accused Person Japheth Bii.iii.A panga with a rubber handle.iv.Cotton Wool Swabs from the Panga.

16. Lawrence was requested to Examine the Items and to establish the presence of blood and state any relationship.

17. According to his findings, the panga was not stained with blood. The cotton swabs were stained with blood but unfortunately, the swabs did not generate any DNA since the blood was decomposed.

18. PW.7 – Weldon Kimutai said on 29/7/2016, while he was at his home looking after cattle, he saw the deceased taking cattle to the river. PW.7 said the Accused Person was hiding at the river. He said he saw the Accused Person coming out of the bush and cutting the deceased with a panga on the head and neck.

19. PW.7 said he screamed and the Accused Person ran away. PW.7 said he met Paul and Richard who were neighbours and he told them. PW.7 said he knew both the Accused Person and the deceased very well since they were neighbours.

20. PW.8 – Sergent Simon Nganai said he was at a hotel taking supper when he was called to the scene. He went to the scene with the Area Chief. He said he found the Accused Person locked inside a house and members of the public wanted to lynch him. PW.8 rescued the Accused Person and took him to Kericho Police Station.

21. PW.9 – Dr. Wesley Rotich did the post mortem on the body of the deceased on 2/8/2016. The Doctor formed the opinion that the cause of death was severe head injury and hemorrhage secondary to cut of major vessels of the neck.

22. PW.9 produced the Post Mortem Report as an Exhibit in this case. It is dated 2/8/2016.

23. PW.10, CIP Madina Abdalla who investigated this case charged the Accused Person with the offence of Murder.

24. PW.11- CPL. dAvid Kipchumba who is attached to scenes of crime, Kericho produced photographs of the panga which were taken by his colleague Titus Mukunya.

25. At the conclusion of the prosecution case, the court found that the prosecution had established a prima facie case and ruled that the accused person has a case to answer. In his defence, the accused person said he is a charcoal dealer.

26. The accused person said on the material day, he woke up at midnight and went to sell charcoal at Kericho. When he finished selling charcoal, he was on his way home when he met Paul Kosgei standing on the side of the road.

27. He said the deceased started abusing him and he hit him with a panga. He said both of them fell down and struggled for the panga and when the accused let go of the panga, it cut the deceased on the neck. The accused person said he ran home and told his parents who went to the scene. The accused said the deceased was called Paul Kipchumba Kosgei and not Samuel Kosgei.

28. The accused person showed the court a scar at the back of his head which he said he sustained during the incident.

29. This court has considered the evidence adduced by the prosecution in this case. The court has also taken into account the defence by the accused person.

30. The accused person is facing a serious charge of Murder Contrary to section 203 as read with 204 of the Penal Code.

31. It is the duty of the prosecution to prove the guilt of the Accused Person and the standard of proof required is beyond reasonable doubt.

32. Section 203 of the Penal Code cap 63 Laws of Kenya defines murder in the following terms: “Any person who with malice aforethought causes the death of another person by an unlawful act or omission is guilty of murder.” Thus, the central ingredients of the offence of murder are malice aforethought; and an unlawful act or omission on the part of the accused.

33. In order for the Prosecution to secure a conviction on the charge of murder, it has to prove three ingredients against an Accused person. In Anthony Ndegwa NgarivRepublic [2014] eKLR, the elements of the offence of murder were listed as follows: - “(a) the death of the deceased occurred; (b) that the accused committed the unlawful act which caused the death of the deceased; and (c) that the accused had malice aforethought.”

34. In the current case, I find that the prosecution has proved the guilt of the accused person to the required standard. PW.7 saw the Accused Person accosting the deceased and cutting him with a panga before fleeing the scene.

35. There were other witnesses PW.2, PW.3 and PW.4 who saw the accused person fleeing the scene of crime. I find that there is evidence which places the Accused Person at the scene of crime.

36. I find that the prosecution has proved that there was malice aforethought.

37. Section 206 of the Penal Code cap 63 Laws of Kenya defines malice aforethought as follows:“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.”

38. The Court of Appeal in the case of Joseph Kimani NjauvRepublic (2014) eKLR, the Court of Appeal held as follows:“Before an act can be murder, it must be aimed at someone and in addition, it must be an act committed with one of the following intentions, the test of which is always subjective to the actual subject;(i)The intention to cause death;(ii)The intention to cause grievous bodily harm;(iii)Where the accused knows that there is a serious risk that death or grievous bodily harm will ensue from his acts, and commits those acts deliberately and without lawful excuse with the intention to expose a potential victim to that risk as the result of those acts.It does not matter in such circumstances whether the accused desires those consequences to ensue or not in none of these cases does it matter that the act and intention were aimed at a potential victim other than the one succumbed…”

39. PW.1 the wife of the deceased was told by the accused person that he was going to kill the deceased. PW.1 told the deceased what the Accused Person had said but the deceased did not believe her.

40. I find that there is evidence that the Accused Person had premeditated the Murder and he executed it as he had threatened.

41. PW.7 saw the Accused Person hiding in a bush where he was waylaying the deceased and he cut him with a panga on the head and neck in broad daylight.

42. The Doctor who conducted the post mortem confirmed that the deceased had a cut on the head and neck and that the cause of death was severe head injury and hemorrhage secondary to cut of major vessels of the neck.

43. The accused person in his defence said it was the deceased who accosted him and cut him with a panga on his head and they both fell down and started struggling for the panga.

44. The accused person said he let go the panga and it cut the deceased.

45. The accused person said the name of the deceased is Paul Kosgei. However, the name on the charge sheet and the evidence of all the prosecution witnesses is that the deceased was called Samwel Kosgei and not Paul Kosgei.

46. I find that the defence does not displace the prosecution evidence.

47. I find that the prosecution has established the guilt of the Accused Person to the required standard. The defence by the Accused Person is a mere denial. I find the Accused Person guilty as charged and I convict him with the offence of Murder Contrary to Section 203 as read with Section 204 of the Penal Code.

DELIVERED, DATED AND SIGNED AT KERICHO THIS 11THDAY OF NOVEMBER, 2022A. N. ONGERIJUDGE