[2023] KEHC 25909 (KLR)

Republic v Bosuben & another (Criminal Case 5 of 2018) [2023] KEHC 25909 (KLR) (30 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25909 (KLR)

Republic of Kenya

In the High Court at Kericho

Criminal Case 5 of 2018

JK Sergon, J

November 30, 2023

Between

Republic

Prosecution

and

Charles Kiplangat Bosuben

1st Accused

Shadrack Ngeno Kibet

2nd Accused

Judgment

1. The accused persons herein namely:- Charles Kiplangat Bosuben and Shardrack Ngeno Kibet are 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, the accused persons on 23rd November, 2017 at Cheptendeniet Village, Cheboin Location in Bureti Sub-County within Kericho County, murdered Willy Kipkemoi Kigen.

2. The accused persons pleaded not guilty to the charge and the prosecution called eight (8) witnesses to prove its case.

3. Gladys Chepkorir (Pw. 1) testified that on the material day she was coming from work. She had covered herself as it was drizzling when she saw three people running, two men were chasing the third man, she saw the man who was being chased Stop and pick up stones and threw them at his pursuers but he missed. Pw. 1 testified that she ran back as she was almost hit by a stone, on reaching a corner, she turned back at the three people and she saw one person holding something shiny, she was not able to identify the object because she was far, however, as she fled away from the scene, she began to scream louder for people to go to the scene. As she fled she heard something being cut and shortly someone screamed“forgive me”.She was able to recognize Charles, the 1st accused at the scene of crime and that he was the one holding the shiny object on the material day. She testified that she went back to the crime scene and saw that one person was injured, he had sustained injuries to his head, he had been cut on the head and arrangements were made to take the injured person to hospital. She stated that she knew the deceased prior to his demise, he was a neighbour. Charles was also their neighbour, she had heard severally that there was a land dispute between Charles and the deceased.

4. In Cross Examination, Pw. 1 stated that she recorded a statement at the police station and she could recall her statement. She confirmed that on the material day as she was coming from work, three people came from behind her, she could not see them coming as she was facing in a different direction, she agreed that it was difficult to identify a person running from behind but she recognized them. She conceded that she was very far away and could not see the weapon being used, however, she maintained that she recognized the person holding the shiny object. She confirmed that the shiny object was not in court.

5. Janet Chelangat Kigen (Pw. 2) testified that on the material day she was at home watching TV when Elijah Koech a neighbour came to her house and informed her that his young child (son) had seen her husband being put on a motorcycle with blood all over his face, hands and clothing, she decided to call her husband to inquire on his whereabouts, a lady picked his phone and informed her that her husband was at Litein Hospital. The lady told her that she was a doctor in the said hospital and upon inquiring about her relationship with the victim, she identified herself as his wife, the doctor informed her that her husband had cuts on his body and was bleeding profusely. She took a motorcycle towards the hospital, but she did not reach the hospital. On her way to the hospital she was called by the people (Bernard Cheruiyot and Gilbert Langat) who had taken her husband to hospital and informed that he had died. On the material day, she recalls that Charles Bosuben had been served with eviction orders; there was a pending court case between Charles Bosuben and Willy Kigen, her husband; they were cousins. There was a subsisting land dispute between the deceased and the accused, Bosuben the 1st accused had on previous occasions issued death threats and Shadrack the 2nd accused had a habit of waylaying the accused. She stated that she went to the hospital when they went to collect the body for burial.

6. On cross examination Pw. 2 confirmed that she was at her house when the incident happened, she therefore did not witness the attack on her husband, he had 21 cuts. She confirmed that there was a court case and a court order, she had supplied the ruling a court order to the police. She confirmed that Bosuben had been served with the court order. She maintained that her husband had been threatened on numerous occasions, she reported to the area chief, however, she had no records. She however recalls one incident when her husband was assaulted and they lodged Criminal Case No. 3020 of 2017 in the lower court which was still pending determination.

7. Geoffrey Kiprono Ngetich (Pw. 3) testified that on the material day at around 5:20 pm had gone to the canteen to buy drugs when he saw Charles Bosuben at a distance crossing towards his home, he was alone and he did not know where he was coming from. About 20-25 minutes later, he encountered some women on the road side saying that ‘Mwalimu’ had been assaulted, they were referring to the deceased who was a teacher. They were also discussing a land dispute between the deceased and Bosuben and linked the land dispute to the assault on the deceased. Later the Area Chief summoned him and requested him to record his statement. He knew the deceased and the accused, they were neighbours and had a land dispute.

8. On cross examination Pw. 3, confirmed that he was not there when the deceased was assaulted. He maintained that he was aware that there was a land dispute between the deceased and Bosuben, however, he had never been summoned as a witness in the land case.

9. Leonard Cheruiyot (Pw. 4) a motorcycle operator recalls that on the material day, he was taking a customer to his destination and the customer alighted at Roret and he went back to the stage where he met Willy Kigen (the deceased) they had a brief chat and he left. After about 10 minutes he heard some screams and he went to the scene and found Willy Kigen lying down near the road, he had injuries on the hand, head and the leg, he was still alive. He went to a nearby neighbour and requested for a vehicle to carry Willy to hospital, he took Willy to Litein Hospital.

10. On cross examination Pw. 4 confirmed that he did not witness the assault, he also did not know who had assaulted the deceased. He confirmed that on the material day and time the deceased was lying down injured, he was talking and he was asking for water. He later learnt that the deceased had succumbed. He confirmed that he did not know any of the accused persons in this case.

11. Gilbert Kipkemoi Langat (Pw.5) testified that on the material day he was at home when a friend of his came and requested him to assist in taking someone who was injured to hospital, he went to the place where the person was lying and they took him to Litein Hospital where he succumbed. He had sustained some fatal injuries on the leg and head. On the following day he wrote his statement with the police.

12. On cross examination, Pw. 5 stated that he did not know the accused persons and did not witness the assault on the deceased.

13. Kevin Kibet (Pw.6) a young boy aged fourteen years, the court conducted a voire dire examination. He confirmed that he did not know the accused persons. He recalls that on the material day, he was coming from the shop when he saw people running, they were chasing one another, there was a woman screaming, there were people fighting, he did not know who was being beaten. On cross examination Pw. 6 confirmed that he did not know the deceased.

14. CPL Paul Oguta (Pw. 7) number 63867 testified that on the material day while attached at DCIBureti they received a report that one teacher by the name Willy Ngeno had been killed at Cheptendeniet Village at Cheboin Location, they rushed to scene and on arrival were informed that the deceased had been rushed to AIC Litein, upon making further inquiries they found one woman who had witnessed the incident, she informed them that the deceased had been attacked by Bosuben and his son who cut the deceased with a panga and left him for dead. They did not recover the weapon, they were informed that it was thrown in a river, they searched for it unsuccessfully. They proceeded to AIC Hospital and found that the deceased’s body had been transferred to the mortuary.

15. Upon further investigation, they learnt that the accused person had a land dispute with the deceased to wit Kericho Civil Case No. 120 of 2016 in which the court had ruled in favour of the deceased, who was issued with an eviction order and the OCS Litein was to execute the order. On the material day the OCS and the deceased had gone to evict the accused person who had encroached on his shamba. After the OCS left the deceased and his son emerged from a nearby plantation and started chasing the deceased when they met Pw. 1. They finally caught up with the deceased and struck him with a panga, the villagers came to his rescue but it was too late. The accused persons fled when they saw the crowd. Pw. 7 recorded witness statements at the crime scene. The 1st accused surrendered himself at Roret and was escorted to the DCI Litein - whereas the 2nd accused a university student was subsequently arrested, upon undergoing psychiatric tests and being found fit to stand trial, the accused persons were charged with the instant offence.

16. On cross examination, Pw.7 confirmed that he was the investigating officer in the case and his findings were that the deceased was killed by the two accused persons. He confirmed that he visited the crime scene on the material day and that the accused persons were not at the crime scene. He maintained that the deceased was murdered with a panga, however, he did not recover the panga, which was thrown in a river about 10 metres away from the crime scene.

17. Dr. Philip Kosgei (Pw. 8) a medical doctor recalls that on 29th November, 2017 he conducted a post mortem on the deceased at Litein AIC Mission Hospital and formed the opinion that the cause of death was neurotic shock as a result of the multiple injuries involving the nervous system hemorrhagic shock due to severe bleeding from multiple cut wounds, he produced the post mortem report as PExh. 1.

18. On cross examination, Pw. 8 confirmed that the deceased had multiple cut wounds and that sharp and blunt objects were used to assault the deceased. He stated that he could not ascertain the time of death, rather he had been informed that the deceased was waylaid by two people who were his neighbours, they assaulted him and left him for dead. He was pronounced dead on arrival at the hospital.

19. Section 211 of the Criminal Procedure Code was complied with, the accused persons opted to give sworn statements and called several witnesses.

20. Shadrack Kibet Ngeno (Dw.1) opted to give a sworn testimony, he stated that on the material day at 7:30 am he went to the home of Weldon Korir to pluck tea, at around 1:00 pm took the plucked tea for weighing, had lunch then proceeded to Kiptome Centre to play pool with Weldon Korir. Soon thereafter, Weldon Korir left for home, Dw. 1 and his brother Ambrose Ngeno continued to play pool till about 9:00 pm when he left for home. He arrived home at 9:30 pm, had supper and retired to bed. The following morning he left for the home of Weldon Kipkorir to pluck tea, while they were plucking tea a lady called Esther inquired whether they were aware of what happened to the deceased, he maintained that he did not know who killed the deceased.

21. On cross examination, Dw. 1 stated that knew the deceased he was their neighbour, was a teacher and had a family. He stated that his co-accused, the 1st accused herein, is his clans mate and that he had a land dispute with the deceased and that there were attempts to resolve the land dispute. On re-examination, Dw. 1 confirmed that he had no land dispute with the deceased.

22. Charles Kiplangat Bosuben (Dw.2) opted to give a sworn statement, he stated that he was in this court to face a charge of murder of the deceased herein, he stated that on the material day he attended a circumcision ceremony about 15 kilometres away. He stated that he left his home at 10:00 am and stayed at the ceremony until 10:00 pm. He was drunk afterwards, so he went back home and slept. The next day his wife informed him that there was a fight in which the deceased was fatally injured. He stated that he and the deceased had a land dispute and the issue had been resolved. He stated that he visited the police station after three weeks, where he was arrested and put in police cells as a suspect for murder.

23. On cross examination, Dw. 2 reiterated that on the material day he attended a circumcision ceremony. He stated that the deceased was present in the circumcision ceremony. He confirmed that he had a land dispute with the deceased but the issue was resolved through Kericho HCCC No. 120 of 2016, where the deceased was the plaintiff and he was successful and further that he was informed that the OCS came to execute the eviction order while he was at the ceremony. He confirmed that at the time he was still living on the land in dispute and that he still resides on the land in dispute to date. He was adamant that it is not true that he ambushed and murdered the deceased.

24. Judith Chepwetich Bosuben (Dw. 3) stated that on the fateful day she was at home having returned from the market, upon her return her son Brian Kipkoech told her that he heard screams from Cheboror. She stated that when she was leaving for the market her husband was preparing to leave for a circumcision ceremony and he came back late while drunk.

25. On cross examination, Dw. 3 confirmed that Bosuben is her husband and that when she left for the market her husband was preparing to go and attend a circumcision ceremony and that when she returned at about 5:00 pm one of her sons told her that he heard screams from the direction of Cheboror. She confirmed that she knew the deceased but does not know who killed him, rather she heard that he died after fighting. She was aware that the deceased had a land dispute with her husband and that there was a case in court in which they were to be evicted and that they had moved out the shamba, however, her husband still occupies the shamba. She stated that they did not plan to eliminate the deceased.

26. Weldon Kipkirui Korir (Dw. 4) stated that he was in court to testify on behalf of the 2nd accused, he testified that on the material day he and the 2nd accused were plucking tea from about 8:00 am to about 2:00 pm and soon thereafter left to play pool until about 6:00 pm when he left leaving behind Shadrack. The following day he heard about the deceased’s death.

27. On cross examination, Dw. 4 stated that while plucking tea they were five in the farm, Bosuben the 1st accused was not with them, on the material day Shadrack came to assist him to pluck tea after weighing the tea they left. He could not tell how the deceased was killed.

28. Ambrose Kipkoech Rono (Dw. 5) testified that on the material day he was with Shadrack and they played pool for about four hours, he therefore did not know who killed the deceased.

29. Brian Kipkoech Langat (Dw. 6) testified that on the material day he was at home herding some cows, at around 4:00 pm, when he heard screams, he went to find out what was happening, on the way he met some people who informed him that some unknown persons had fought, he therefore did not get to know who was fighting, he returned home at about 5:00pm and found that his mother had returned from the market. He stated that his father called Bosuben arrived home at around 6:00 pm and went to his room, he was drunk. His father was from an initiation ceremony.

30. On cross examination, Dw. 6 confirmed that Charles Bosuben is his father. He reiterated that he did not proceed to the directions of the screams after his encounter with the two men. He reiterated that on the material day his father had gone to attend an initiation ceremony.

31. The defence filed submissions which I have considered.

32. Mr. Sang Learned Counsel for the defence submitted that some of the prosecution witness accounts were marred with contradictions and cited the Court of Appeal case of Richard Munene v Republic [2018] eKLR in which the court stated that;“contradictions, discrepancies and inconsistencies in evidence of a witness go to discredit that witness as being unreliable.”

33. The Learned Counsel submitted that the 1st accused had testified that on the material day he had gone to an initiation ceremony in another village and arrived home at around 6:00 pm which was corroborated by Dw. 3 and Dw. 6 whereas the 2nd accused had testified that he had gone to a friend’s house to pluck tea leaves and thereafter to play pool which was corroborated by Dw.4 and Dw.5. The Learned Counsel therefore submitted that the prosecution had not disproved the alibis of both accused persons and that there was no evidence placing both accused persons at the scene of crime, he cited High Court case in Republic v Patrick Ong’au Okioma [2021] eKLR, in which it was stated that;“In raising an alibi defence, the accused did not assume any responsibility of proving his defence. ”and the case of Joshua Makau Kitavi v Republic [2017] eKLR, the court stated as follows;“The onus on the prosecution to prove the charge against the accused beyond reasonable doubt never shifts and there is no onus on the accused to prove the alibi beyond that of introducing the evidence of alibi.”

34. The Learned Counsel submitted that the prosecution failed to adduce evidence that the accused persons had malice aforethought.

35. The Learned Counsel contended that no one saw the accused persons attack or kill the accused and no murder weapon was recovered from the crime scene. He contended that the prosecution case had not met the threshold for circumstantial evidence and relied on the principles of application of circumstantial evidence as set out in the case of Kipkering Arap Koske & Another 16 EACA 135. The Learned Counsel also cited the case of Musoke v R [1958] EA 715 in which the court set out the principle on circumstantial evidence as follows;“It is also necessary before drawing the inference of the accused’s guilt from circumstantial evidence to be sure that there are no other co-existing circumstances which would weaken or destroy the inference.”The Learned Counsel maintained that the circumstances did not unerringly point towards the guilt of the accused persons.

36. The Learned Counsel maintained that the prosecution had not discharged the burden of proof, that both accused persons with malice aforethought caused the death of Willy Kigen the deceased herein and cited the case of Republic v William Mburu Mungai [2019] eKLR whereby it was held as follows;“Our criminal justice system places the burden of proof entirely upon the shoulders of the prosecution.”

37. The sole issue for consideration is whether the prosecution proved its case against the accused beyond reasonable doubt.

38. The offence of murder is provided for in section 203 of the Penal Code that provides as follows;“Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.”In Republic v Andrew Omwenga [2009] eKLR the court held:“It is clear from this definition that for an accused person to be convicted of murder, it must be proved that he caused the death of the deceased with malice aforethought by an unlawful act or omission – there are therefore three ingredients of murder which the prosecution must prove beyond reasonable doubt in order to secure a conviction. They are:(a)The death of the deceased and the cause of the death,(b)That the accused committed the unlawful act which caused the death of the deceased and(c)That the accused had the malice aforethought.”

39. The accused persons in this case were charged with the offence of murder contrary to section 203 of the penal code which defines murder as the unlawful killing of a person or persons with malice aforethought.

(a) Death and Cause of Death 40. In this case the death of the deceased person is not disputed, Pw. 4 testified that on the fateful day shortly after he parted with Willy Kigen (the deceased herein), he heard some screams, upon going to the scene, he found the deceased lying down on the road, he had some injuries on the head, hand and leg, he and Pw. 5 took the deceased to AIC Litein Hospital where he subsequently succumbed.

41. Dr. Philip Kosgei (Pw. 8) testified that on 29th November, 2017, he conducted the post mortem on the deceased at AIC Litein Mission Hospital and his findings were that the cause of death was neurotic shock as a result of the multiple injuries involving the nervous system hemorrhagic shock due to severe bleeding from multiple cut wounds, he produced the post mortem report as PExh. 1 which report was adopted by this court.

(b) Whether the accused committed the unlawful act which caused the death of the deceased 42. It take cognizance of the fact that most of the prosecution witnesses did not witness the assault on the deceased save for Pw. 1 who testified that on the fateful day she was able to recognize the 1st accused person, at the scene, she further testified that although she was standing at a distance, she saw the 1st accused holding a shiny object, she heard something being cut and someone screaming“forgive me”.She further testified that later when she went back to the scene she found that the deceased had sustained fatal injuries to his head. Pw. 7 the investigating officer gave a chronology of events of the fateful day based on his investigations in the instant case. Pw. 7 testified that while conducting the investigations in the instant case, he learnt that there was a subsisting court case between the 1st accused person and the deceased and the court had delivered a ruling in favour of the deceased and on the material day, he and the OCS Litein went to serve the 1st accused’s wife with eviction orders and soon after they had left the 1st accused and his son pursued the deceased when they met with Pw.1, they caught up with the deceased and struck him with a sharp object which the I/O learnt was a panga which was never recovered at the crime scene. Pw. 7 further testified that the 1st accused surrendered to law enforcement officers at Roret. I therefore find that the 1st accused was placed at the scene of crime by witness accounts of Pw. 1 and Pw. 7 whereas the 2nd accused is not adversely mentioned, save for Pw. 2 the deceased’s wife who testified that the 2nd accused had a habit of weighlaying the deceased. I find that the 1st accused persons' defense amounted to a mere denial. Accordingly, I am satisfied that the prosecution proved beyond reasonable doubt that it was the 1st accused person who unlawfully caused the deceased's death.

(c) Whether the Accused Person had Malice Aforethought. 43. For the charge of murder to succeed, it must be proved that they acted with malice aforethought. Section 206 of the Penal Code provides circumstances from which malice aforethought may be inferred. They are:“(a)An intention to cause 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 intention to commit a felony;(d)..."Having considered the brief facts of this case, I find that the 1st accused person herein had malice aforethought, which can be inferred from his actions on that fateful day. According to prosecution witness accounts Pw. 1, Pw. 2, Pw.3 and Pw.7, the 1st accused person's assault on the deceased was fueled by the subsisting land dispute between them which culminated in a court case and on the material day the deceased had served an eviction order upon the accused. In Nzuki v Republic [1993] KLR 171, the Court of Appeal observed that malice aforethought can be inferred from the acts of an accused person. The Court elaborated as follows:“Malice aforethought” is a term of art and is either an express intention to kill, as could be inferred when a person threatens another and proceeds to produce a lethal weapon and uses it on his victim; or implied, where, by a voluntary act, a person intended to cause grievous bodily harm to his victim and the victim died as the result.”

44. I have considered the defence of alibi raised by both accused persons. The 1st accused person namely Charles Kiplangant Bosuben provided an alibi he stated that on the material day he attended an initiation ceremony in another village and returned home late while drunk, however, this is contrary to the prosecution witness accounts. I also find that the alibi defence is not water tight as there are no witnesses to corroborate the fact that he attended any initiation ceremony on the material day. Dw. 3 his wife testified that she left the house for the market as he was preparing to attend an initiation ceremony and Dw. 6 his son testified that he met him after he purportedly attended the initiation ceremony.

45. The 2nd accused person namely: Shadrack Ngeno Kibet provided an alibi, he stated that on the material day he went tea plucking, took the tea for weighing at around 1:00 pm and thereafter proceeded to Kiptome Shopping Center to play pool till late this was corroborated by Dw. 4 and Dw.5 who were with him on the material day. I therefore find that he was not at the crime scene on the material day and in the absence of cogent evidence by the prosecution placing him at the scene of the crime, in the circumstance, I am duty bound to acquit him of the instant offence. It will be a travesty of justice to convict the 2nd accused on insufficient evidence availed by the prosecution. I am in concurrence with the sentiments of Mrima J. in JOOv Republic [2015] eKLRwhen he held thus:“It is not lost to this court that the offence which the Appellant faced was such a serious one and ought to be denounced in the strongest terms possible. However, it also remains a cardinal duty on the prosecution to ensure that adequate evidence is adduced against a suspect so as to uphold any conviction. The standard of proof required in criminal cases is well settled, proof beyond reasonable doubt hence this case cannot be an exception. This court holds the view that it is better to acquit ten guilty persons than to convict one innocent person."Consequently, it is my finding that the evidence adduced by the prosecution against the 2nd accused has not met the threshold of proof. I find the prosecution has not proved the charge of murder against the 2nd accused herein beyond any reasonable doubt. I therefore find the 2nd accused Shadrack Ngeno Kibet not guilty of the charge of murder and is hereby acquitted. It is hereby ordered that he be set at liberty forthwith unless otherwise lawfully held.

46. Accordingly, I find that the defence put forward by the 1st accused person namely: Charles Kiplangat Bosuben does not displace the prosecution’s case. The prosecution has proved its case against the 1st accused beyond reasonable doubt and in the premises, I find the 1st accused person guilty for the offence of murder contrary to section 203 as read with section 204 of the Penal Code. The 1st accused person is hereby convicted.

DATED, SIGNED AND DELIVERED AT KERICHO THIS 30TH DAY OF NOVEMBER, 2023. ..............................J.K. SERGONJUDGEIn the presence of:Mr. Musyoki – Prosecutor1st and 2nd Accused - Present in PersonKiletyen for the Accused Persons