[2022] KEHC 13413 (KLR)

Republic v Biwott alias Jitu (Criminal Case 3 of 2018) [2022] KEHC 13413 (KLR) (5 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13413 (KLR)

Republic of Kenya

In the High Court at Eldoret

Criminal Case 3 of 2018

EKO Ogola, J

October 5, 2022

Between

Republic

Prosecutor

and

Elphas Kiprotich Biwott alias Jitu

Accused

Ruling

1. The accused person herein is charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code. The particulars are that on the January 2, 2018 at Merewet Trading Centre in Eldoret East Sub-county within Uasin Gishu County murdered Jonah Kibet Tanui.

2. The accused pleaded not guilty to the charge and the matter was set down for hearing. The prosecution called six witnesses to prove its case.

3. PW1, Kipsang Chesergon, testified that on the material night he left his house at 9. 00pm for Merewet Centre and he met the deceased on the way there. When they arrived at Merewet Centre, they found the bars already closed and they decided to go back home. On the way to the bus stage somebody came from behind the shops and ordered them to stop, claiming he was a police officer. They identified the person as the accused person alias Jitu. He had worn a brown jacket and when he ordered them to stop they complied. When the deceased asked the accused what was wrong he beat the deceased and PW1. It was his evidence that the accused beat the deceased so badly that he fell down helpless. PW1 was also beaten and he lost consciousness. When PW1 regained consciousness in the early hours of the morning, he found himself lying down at the stage. He noted that the deceased was lying next to him. He identified the brown jacket that the accused was wearing as prosecution exhibit 1 and the sticks the accused used to beat them with as prosecution exhibits 2 (a) and (b) respectively. He also stated that the incident occurred between 11 pm and 12 midnight and that he was able to see the accused because there was sufficient light at the scene from the security lights at the stage.

4. PW2, Emmanuel Kimeli testified that on the material day he was at Merewet Trading Centre. He was at a restaurant where he had booked a room and after it closed, he left for his room and the accused followed him. The accused was someone who was known to him and when he decided to go back to the restaurant the accused followed him there insisting that he buy him beer. He went back to his room and the accused followed him. He pushed the accused outside and closed the door. The accused then started hitting the windowpanes with a stick that he was armed with and then he left shortly thereafter. In the morning, he learnt that the accused had killed somebody. During cross examination the witness was categorical that he did not witness the incident and that he could not confirm that it was the accused who caused the death of the deceased.

5. PW3, Hussein Kipyego testified that at around 11pm on the material night he received a call from a lady who was working at Whitehouse bar and who told him that the accused was hitting the window panes and they required his help. He arrived at the restaurant just as the accused was leaving. He heard screams shortly thereafter but he did not proceed to the scene where the screams were emanating from. The following morning, he got to learn that the accused had committed murder. He did not know the deceased. He got to see the deceased’s body and noted that there were two pieces of sticks prosecution exhibits 2(a) and 2(b) at the scene where the deceased’s body was. He also identified the jacket that the accused was wearing on the material night (prosecution exhibit 1). During cross examination, he stated that he saw the accused leaving the restaurant just as he was arriving. It was about 1. 00am and that is when he heard the screams. He did not bother to find out who was screaming.

6. PW4 was Elijah Kiptoo Tanui. He is the deceased’s father. His evidence was that he received a call that the deceased had been murdered at Merewet Centre. He went to the scene and saw the deceased’s body and saw PW1 lying a few metres away from the deceased’s body. He did not witness the offence being committed.

7. PW5 was Dr Nalianya. He performed post-mortem on the deceased’s body and noted that there was a laceration on the left side of the skull and laceration on the left eye region. The deceased had multiple bruises involving the forehead and the left side of the face and multiple bruises on the fore-arm and hands. He also noted that there was fracture of two bones of the left fore-arm and fracture on the 3rd, 4th and 5th ribs. There was also bleeding on the surface of the brain and bleeding beneath the skin on both arms. He opined that the cause of death was multiple injuries due to assault.

8. PW6, Corporal Joseph Yatich, was the investigating officer in this matter. On January 3, 2018 he proceeded to Merewet Trading Centre where he found the deceased’s body lying dead with some deep injuries on the left side of the head. At the scene were freshly broken sticks and a pole. He took the sticks and the pole. He established that the accused had killed the deceased but the accused was not at the scene as he had run away. He took the deceased’s body to the mortuary and went with the chief and the OCS Moiben Police Station to the accused’s house where he recovered a brown jacket and the accused’s belt that was identified to him by the accused’s relatives. He arrested the accused on January 14, 2018 after he resurfaced at Merewet Trading Centre. During cross-examination, he stated that he found the sticks and the pole at the scene. The deceased’s body was found at the shopping centre by the roadside.

A case to answer 9. Upon the close of the prosecution’s case, M/s Okok, learned counsel for the prosecution, submitted that the offence of murder had been proved beyond reasonable doubt. All the ingredients of murder as provided for under section 203 of thePenal Code were met. It is the prosecution’s contention that the death of the deceased is not disputed in this particular case. PW3, PW4, PW5 and PW6 all saw the deceased’s body. Post-mortem was performed on the deceased’s body and the cause of death was proved beyond reasonable doubt by way of medical evidence adduced by PW5.

10. The prosecution submitted that PW1 placed the accused at the scene of crime. The accused was someone who was well known to PW1 prior to the incident and identification was therefore by way of recognition. It wasPW1’s evidence that the accused severally assaulted the deceased while armed with a stick before turning on him. The deceased assaulted them without any provocation at all. As a result of this assault, the deceased sustained multiple injuries. The injuries were confirmed by PW3, PW4 and PW6. The multiple injuries are what led to the deceased’s death as was confirmed by PW5. It is evident that the deceased died out of the unlawful act of assault that occasioned fatal injuries. M/s Okok submitted that the question that now needs to be answered is whether the accused had malice aforethought. Section 206 of thePenal Codeprovides that malice aforethought shall be deemed to be established by evidence proving 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 felony;(d)An intention by the act or commission to facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony.

11. The prosecution submitted that the evidence against the accused person is direct evidence and he was placed at the scene by PW1. It was submitted that from the evidence ofPW1, it is clear that the accused had an intention to cause grievous harm to the deceased. The accused intentionally assaulted the deceased on the head and other parts of the body using a stick and a pole that he was armed with. He beat the deceased using a stick that got broken into pieces without any provocation at all and caused the deceased serious injuries including fractures of two bones on the left fore-arm and fractures on the ribs. It is these multiple injuries that caused the death of the deceased. The murder weapon (prosecution exhibits 2 (a) and (b) were found at the scene of crime by PW6. The accused’s conduct after the incident further proves his guilt. PW6 stated that the accused disappeared after the incident and was arrested on January 14, 2018 at Merewet Trading Center after he resurfaced. This was almost two weeks after he had assaulted the deceased. The prosecution submitted that the evidence on malice aforethought is therefore solid.

12. According to the prosecution, a prima facie case was established against the accused person. The evidence adduced by the prosecution witnesses is water tight, well corroborated, credible and consistent pointing to the guilt of the accused person. Counsel urged this court to enter a ruling of a case to answer and place the accused person on his defense.

13. The accused person is represented by Mr Mathai Maina, advocate. Learned counsel for the accused cited section 206 of the penal code and to buttress the meaning of malice aforethought relied on Hvam v DPP (1974J AC where the court held inter-aliathat: -“Malice aforethought in the crime of murder is established by proof beyond reasonable doubt when during the act which led to the death of another the Accused knew that it was highly probable that, that act would result in death or serious bodily harm".Counsel also relied on the case of Republic v Abdi Ibrahim Owl (2013) eKLR in which a prima facie case was defined as follows: -"prima facie" is a latin word defined by Black's Law Dictionary, 8th Edition as "sufficient to establish a fact or raise a presumption unless disproved or rebutted".Counsel cited Ramanlal Trambaklal Bhatt UR (1957) EA 332 at 334 and 335, where the court sated as follows: -"Remembering that the legal onus is always on the prosecution to prove its case beyond reasonable doubt, we cannot agree that a prima facie case is made out if, at the dose of the prosecution, the case is merely one "which on full consideration might possibly be thought sufficient to sustain a conviction". This is perilously near suggesting that the court would not be prepared to convict if no defence is made, but rather hopes the gaps in the prosecution case. Nor can we agree that the question whether there is a case to answer depends only on whether there is "some evidence, irrespective of its credibility or weight, sufficient to put the accused on his defence".

14. It was submitted that the question that this court has to deal with and answer at this stage is therefore whether based on the evidence before this court, the court after properly directing its mind to the law and the evidence can convict if the accused chose to give no evidence. Further, citing section 306 (11 as read with subsection (2) of the Criminal Procedure Code, counsel submitted that this case is built on circumstantial evidence since none of the witness actually saw the accused committing the offence. The only witness who had an encounter with the accused is PW1.

15. It is the position of the defence that PW6 who was the investigating officer stated that the accused person took a light brown Jacket belonging to the deceased and when they visited the accused person's house they found the said jacket, though there was no inventory that was taken. What is clear is that the jacket that was produced in court was yellow in colour with shades of black and hence it does not match with the description of what the attacker wore on that day.

16. Citing Simon Musoke v RIEA 715 and Supreme Court of Uganda in Kalunda Semakula v UgandaCriminal Appeal No 11 of 1994, counsel for the defence stated that from the evidence of the witnesses in this case they did not join the dots to lead to a conclusion that the accused herein was responsible for the death of the deceased. The prosecution has not discharged its burden of proof to the required standard against the accused and therefore the accused should be acquitted under section 210 ofCriminal Procedure Code.

17. Section 306 (1) & (2) of theCriminal Procedure Code provides;(1)When the evidence of the witnesses for the prosecution has been concluded, the court, if it considers that there is no evidence that the accused or any one of several accused committed the offence shall, after hearing, if necessary, any arguments which the advocate for the prosecution or the defence may desire to submit, record a finding of not guilty.(2)When the evidence of the witnesses for the prosecution has been concluded, the court, if it considers that there is evidence that the accused person or any one or more of several accused persons committed the offence, shall in form each such accused person of his right to address the court, either personally or by his advocate (if any), to give evidence on his own behalf or to make an unsworn statement, and to call witnesses in his defence, and in all cases shall require him or his advocate (if any) to state whether it is intended to cad any witnesses as to fact other than the accused person himself; and upon being informed thereof, the judge shall record the fact. ”

18. The question that this court has to deal with and answer is whether based on the evidence before this court and after directing its mind to the law and evidence, the court may, as opposed to will, convict if the accused chose to give no evidence. It was held in Ronald Nyaga Kiura v Republic [2018] eKLR that;It is important to note that at the close of prosecution, what is required in law at this stage is for the trial court to satisfy itself that a prima faciehas been made out against the accused person sufficient enough to put him on his defence pursuant to the provisions of section 211 of the Criminal Procedure Code. A prima facie case is established where the evidence tendered by the prosecution is sufficient on its own for a court to return a guilty verdict if no other explanation in rebuttal is offered by an accused person. This is well illustrated in the cited court of Appeal case of Ramanlal Bhat v Republic[1957] EA 332. At that stage of the proceedings the trial court does not concern itself to the standard of proof required to convict which is normally beyond reasonable doubt. The weight of the evidence however must be such that it is sufficient for the trial court to place the accused to his defence.”

19. PW1 identified the accused as the person who assaulted him and the deceased to the extent that the deceased was knocked unconscious. PW5, who performed the post mortem on the body of the deceased confirmed that the deceased died as a result of multiple injuries arising out of assault. The death of the deceased is therefore undisputed. The accused was placed on the scene byPW1 and PW2.

20. It is imperative to state the burden of proof at this juncture is not that of reasonable doubt. The test in such matters was laid down in Republic v Galbraith[1981] WLR 1039 in the following words:(1)If there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty. The judge will of course stop the case.(2)The difficulty arises where there is some evidence, but it is of a tenuous character, for example because of interment weakness or vagueness or because it is inconsistent with other evidence:(a)where the judge comes to the conclusion that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict upon it, it is his duty, upon a submission being made, to stop the case.(b)where however the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witnesses’ reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence upon which a jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury.”

21. Upon examining the evidence before this court, I am unable to find that the accused has no case to answer. The accused has a case to answer and I accordingly place the accused on his defence.

It is so ordered.

DATED, SIGNED AND DELIVERED AT ELDORET THIS 5TH OF OCTOBER 2022. E. K. OGOLAJUDGE