https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8441

Republic v Charito alias Benjamin Kasiritich (Criminal Case E008 of 2025) [2026] KEHC 8441 (KLR) (17 June 2026) (Judgment) Neutral citation: [2026] KEHC 8441 (KLR) Republic of Kenya In the High Court at Kapenguria Criminal Case E008 of 2025 RPV Wendoh, J June 17, 2026 Between Republic Prosecutor and Limaikwang Charito alias Benjamin Kasiritich Accused Judgment 1.Limaikwang Charito alias Benjamin Kasirtich faces a charge of Murder contrary to section 203 as read with section 204 of the Penal Code. 2.The particulars of the charge are that on 22/4/2025 at Makutano Township, Chewoyet Sub-location, West Pokot Sub-County within West Pokot County murdered Peter Nguriareng. 3.The accused denied committing the offence and the case proceeded to hearing with the Prosecution calling a total of eight (8) witnesses. In his defence, the accused testified on oath but did not call any other witnesses 4.Claire Cheyech Ketum PW1, was married to the Accused in 2019 but according to PW1 they separated in 2022 when accused became violent to her. They had a son aged just over four (4) years; that after they separated each went their way; that on 22/4/2025 about 5.00p.m., PW1 was in a hotel at Makutano where she did her business when she received a call from a caretaker of her residence who informed her that Accused had gone there and wanted to take the child but that the child had refused and that accused had started to hurl stones at the house; that other tenants in the plot came out to enquire what accused wanted and he said he wanted his child; PW1 told her sister Sharon who was in the house to put the child on a motor cycle so that he could be taken where PW1 was at the hotel; that the child was taken to the hotel. The children then told her that Benjamin (Accused) had also come to the hotel and was at the door carrying a blue/white plastic paper bag. PW1 saw accused, and he asked her why she had told the child to reject him. PW1 told Accused that he could take the child till Monday but he said he did not want the child anymore. PW1 said that by then she had married one Peter Nguriareng (deceased); that Peter called her on phone telling her he was nearby and coming where she was; that Peter arrived and found Accused quarreling her alleging that she had disregarded him; that Peter enquired why they were quarrelling at the place of business in the presence of customers; that Peter called accused outside so that they could talk as they knew one another. They talked briefly and Peter entered the next door which is the bar; that accused threatened her, that she would see what he would do and left. Peter then asked her to serve him with food and she served both Peter and a customer whom she referred to as ‘Mkamba’. When leaving the bar about 7.00p.m. she found accused at the door of the hotel. She was able to see him because there were lights; that accused hit her on the face and prevented her from entering the hotel and she screamed as she entered the bar where accused followed her. She was holding her eye which she was hit as Peter enquired what was happening. She then saw a panga hit Peter’s forehead; that accused cut Peter on the forehead three times in quick succession; that ‘Mkamba’ was still there and customers ran out as others intervened. She left to go and get help and accused advanced towards her but she entered a lodging and she did not know where he went. She later went back to the bar and found that Peter was seriously injured and bleeding profusely. She went to report at police station but was told to take him to Hospital first. On returning to the scene, she found that he had died and went to report to the police again. Police visited the scene and carried away Peter’s body; she identified the bag that accused had carried that day but that he went away with the panga that he sued in assaulting Peter. 5.PW2 Esther Ndungu, a waiter at Regency bar at Makutano recalled 22/4/2025 about 5.30p.m., while at the bar, she was at the counter alone. She said that the bar is next to deceased’s hotel which was operated by Claire (PW1). She knew PW1 as wife to Peter; that Peter went to the bar about 5.30p.m. ordered for alcohol and food from PW1’s hotel; that she sat with Peter on one table as he ate; After that he went to wash hands and came back talking to himself when she enquired what the matter was, he told her she had found PW1 quarrelling with the father of her child; PW3 told him to go tell PW1 not to quarrel before customers and the children; that when Peter was going, PW1 entered the bar. PW3 did not see the father of the child then. PW3 advised PW1 to go report to police and she went back to her hotel. PW3 said there were several customers in the bar including one they referred to ‘Mkamba’ who used to sleep there sometimes. 6.About 7.30p.m. she went out to get change for a customer and when there, she heard screams from their direction of the bar. She saw people run to the direction of the bar. She ran back to the bar and at the gate she heard screams that Peter had been killed. She found Peter had fallen on the floor and was in a pool of blood. She saw two (2) cut wounds on the side of the head. She heard people say ‘Baba Mtoto’ killed Peter but she did not know him. Peter’s body was removed by police and she recorded a statement. PW2 said that when she left the bar, Peter was fine and had not quarreled with anybody in the bar. 7.PW3 Catherine Cheptutu testified that she was wife to Peter Nguriareng Loywat and that they had been married for over twenty (20) years but separated in 2005. On 22/4/2025 about 11.30p.m. her daughter, Rosebella Cheruto received a phone call and was informed that the father had been in an accident and was admitted. They called Peter’s number and a lady called Esther picked and informed them that Peter had been injured and was in the mortuary. They proceeded to the mortuary at Kapenguria and saw/ noticed two cuts on front of the head and on the forehead. On 2/5/2025, PW3 identified Peter’s body to the Doctor before Post Mortem was done, PW3 had no idea who inflicted the injuries on Peter. 8.PW4 Pius Mwia Kyele a businessman was his business trip from Kakuma on 22/4/2025. He went to sleep where he used to put up at Legacy Bar and Restaurant at Makutano. About 6.00p.m. he found a Sudanese friend of his, Peter (deceased) and a plumber at the bar. Peter was taking alcohol and he ordered for his. After 7.00p.m. news, when seated on a high seat, he saw somebody enter the bar and stood behind Peter for about five (5) minutes. He asked Peter why the person was standing behind him and Peter turned to see the person but the person took out a panga and cut Peter on the forehead and right side of the neck. A commotion ensued in the bar as people scampered for safety and the person walked away. He said the lights in the bar were very bright and he was able to see Peter’s assailant well, and that was accused. He said that accused had stood directly opposite him and he had observed him for abut five (5) minutes before the attack. He had never seen the accused before. 9.PW5 Benjamin Kipsengo Meringor was a cousin of Peter. He learnt of Peter’s death on 23/4/2025. He went to the mortuary at Kapenguria and confirmed that Peter was dead. He attended the post mortem with deceased’s wife Catherine Cheptutu. He saw that Peter had been cut on the forehead and two cuts on the right side of the neck and that the Doctor opined that the cause of death was the cut on the right side. 10.PW6 PC Dennis Odhiambo – of Marich police station was instructed by the OCS that a suspect wanted by Kapenguria police station had been arrested by KPR Lami Nyeusi in Pokot Central. He proceeded there with a police driver and other officers and found the KPR, David Dongure and Laban Akotabe who took them to a house where the suspect had been locked up. The person they found locked up in the house identified himself as Charito Longarok, the accused and they arrested and took him to Kapenguria police station. 11.PW7 Dr. Dennis Nanyingi a pathologist at Moi Teaching Referral Hospital, performed post mortem on the deceased on 2/5/2025 at Crystal Hospital after the body was identified by Catherine Cheptutu and Ben Kipsengo. Externally, he found three (3) wounds on the head, 1st was 10 cm with clean edges, near the left ear; Second wound was 12 cm with clean edges and 2 cm from right ear; Third wound was 5 cm located at Superior area of the nose with cut nasal edge. Internally, he found that the lungs were semi collapsed, heart was contracted and devoid of blood; the head had two skull fractures and right temporal area; Brain was cut on areas of the 1st and 2nd wound fractures and there was Celebral Haematoma (Clots). The Doctor formed the opinion that cause of death was traumatic head injury and external haemorhage secondary to assault by a sharp object. He signed the post mortem 12.Cpl. George Wamai (PW8) was the Investigation Officer in this case. He recalled that while on patrol at Tartar about 8.30 p.m. he received a call on phone and was asked to proceed to Regency Bar at Makutano Township at the scene of a Murder. He found a body in a pool of blood in the bar. He interviewed witnesses including Esther Ndungu PW2. From Investigations, he established that Peter (the deceased) was in a love relationship with Claire PW1 who operated a hotel next door; that PW1 had quarreled with the former boyfriend Benjamin (Accused) and that accused had gone to the bar at 7.00p.m. with a panga concealed in blue bag and attacked the deceased in the presence of witnesses (PW4); that the deceased was fatally injured and the assailant ran off with the weapon. PW8 attended the post mortem on 2/5/2025; that accused was later traced at Lami Nyeusi Area and taken to Kapenguria Police station on 17/5/2025, was mentally examined on 23/5/2025 and found to be fit to stand trial. He produced in evidence the Mental assessment report and the blue bag which accused allegedly carried the murder weapon and left behind when he fled from the scene. 13.When called upon to defend himself, the accused (DW1) testified on oath that before arrest, he used to work as a Security Officer from 6.00p.m. to 6.00a.m. He stated that PW1 is his wife and they had never separated; that he is the one who opened the hotel for PW1 next to Regency bar; that on the material day, he was at work till 7.15 p.m. then went to PW1’s hotel but did not find her. He was informed that she was in the bar. He entered the bar and found one person while two were in a corner; that he went near and found a person holding his wife in inappropriate manner. He asked what he was doing, the person poured alcohol on him; that the man dismissed him; the wife was trying to get away but the person held her. He decided to get something to threaten the person so that he could release PW1. That he got very angry when he found the man holding his wife and he does not know what happened. He denied having intended to kill the deceased; that he got the panga in the kitchen in the hotel. 14.The defence Counsel Mr. Kachapin filed closing submissions in which he urged that the prosecution failed to prove malice aforethought because the accused raised the defence of provocation in his defence. He relied on sections 207 and 208 of the Penal Code and submitted that the incident arose from a sudden and emotionally charged confrontation involving the accused person and the deceased; that the events leading to the death unfolded spontaneously following a confrontation at the bar. 15.Counsel relied on the decision of Antony Ndegwa Ngari -V- Republic (2014) eKLR where the Court of Appeal held that “where its not clear that the accused person had formed the requisite intention to kill, malice aforethought is not established and the appropriate conviction would be manslaughter but not murder.” He urged this court to find that the offence disclosed is one of manslaughter. The Prosecution did not file any closing submissions. 16.This being a Criminal Charge, the burden rests on the prosecution to prove the charge beyond any reasonable doubt. Lord Denning in Miller -V- Ministry of Persons (1947) 2 ALL ER 372 stated as follows:- "That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt. But nothing short of that will suffice.” 17.This being a Murder charge under Section 203 and 204 of the Penal Code, the Prosecution is required to prove beyond reasonable doubt the following:-1.Proof of death;2.Proof that the death was caused by the unlawful act or omission of the accused;3.Proof of Malice Aforethought. 1. Proof of death. 18.The death of Peter Ngorarieng is not in dispute. PW1 and 4 told the court that they were present at the time of attack; PW2, PW5 and 8 were present when PW7 performed the post mortem on the body of the deceased. According to PW7, the deceased suffered three cut wounds on the head which caused fractures and haemotoma in the brain and found the cause of death to be traumatic injury and external haematoma secondary to assault by a sharp object. No doubt, the deceased did not die from natural causes but injuries that were inflicted on him. 2. Whether accused caused the unlawful act? 19.In his defence, the accused admitted to assaulting the deceased though he did not go into detail what he actually did. On the other hand, PW1 and 4 gave different accounts of how accused attacked the deceased. No doubt it is accused who caused the fatal injuries on the deceased. 3. Proof of malice aforethought. 20.Malice aforethought is defined in 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—(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 21.In the case of Rex -V- Tubere S/o Ochen (1945) 12 EACA 63 the former Court of Eastern Africa stated thus on the issue “It (the court) has a duty to perform in considering the weapon used and the part of the body injured, in arriving at a conclusion as to whether malice aforethought has been established, and it will be obvious that ordinarily an inference of malice will flow more readily form the case, say, of a spear or knife than from the use of a stick” 22.The accused raises the defence of provocation, that he found his wife in a compromising position with the deceased, that the deceased refused to let go of PW1 and he was angered by what he saw. Section 207 of the Penal Code avails a person the said defence. It provides as follows207.Killing on provocation. 23.When a person who unlawfully kills another under circumstances which, but for the provisions of this section, would constitute murder, does the act which causes death in the heat of passion caused by sudden provocation as hereinafter defined, and before there is time for his passion to cool, is guilty of manslaughter only.” 24.Provocation is defined in section 208 of the Penal Code. The Section provides as follows:-208 (1)The term “provocation” means and includes, except as hereinafter stated, any wrongful act or insult of such a nature as to be likely, when done to an ordinary person or in the presence of an ordinary person to another person who is under his immediate care, or to whom he stands in a conjugal, parental, filial or fraternal relation, or in the relation of master or servant, to deprive him of the power of self-control and to induce him to commit an assault of the kind which the person charged committed upon the person by whom the act or insult is done or offered. [Issue 1] P6-69[Rev. 2014] Penal Code CAP. 63(2)When such an act or insult is done or offered by one person to another, or in the presence of another to a person who is under the immediate care of that other, or to whom the latter stands in any such relation as aforesaid, the former is said to give to the latter provocation for an assault.(3)A lawful act is not provocation to any person for an assault.(4)An act which a person does in consequence of incitement given by another person in order to induce him to do the act and thereby to furnish an excuse for committing an assault is not provocation to that other person for an assault.(5)An arrest which is unlawful is not necessarily provocation for an assault, but it may be evidence of provocation to a person who knows of the illegality. 25.In the case of Peter Kingori Mwangi and 2 others -V- Republic (2014) eKLR., the Court of Appeal while addressing provocation as a defence had this to say;"We start from the premises, that provocation is not complete defence that if advanced and proved would entitle the accused to an automatic acquittal. It is a partial defence, the effect of which is to leave it open to the court to return a verdict of guilty to Manslaughter if the court is satisfied the killing was as a result of provocation. So, what is provocation?In the case of Duffy (1949) 1 ALL ER 932, provocation was defined as “some act, or a series of acts, done by the dead man to the accused which would cause in any reasonable person, and actually causes in the accused, a sudden, and temporary loss of self-control, rendering the accused so subject to passion as to make him or her for the moment not master of his mind….” 26.Coming back to the evidence tendered before the court, I wish to observe that at no stage during the trial did the accused raise the defence of provocation. PW1 testified that she had separated from accused and were no longer as husband and wife from 2022 and even their families were aware of it. That evidence was not rebutted at all. 27.Further to the above, PW1 had testified as to how the incident all began with accused going to pick the child from the house and the child declined to go with him and that accused later followed the child to PW1’s place of business. PW1 also said that accused and deceased knew each other and they even talked when the deceased arrived, there about 5.30 p.m. and there was no dispute between them. Again, that evidence was not shaken or disputed during cross examination of prosecution witnesses. 28.PW2 also testified to having known that PW1 was the wife of the deceased and that it is deceased who had set up the hotel business for PW1. That testimony still stands unchallenged. 29.PW1 testified to accused quarreling her alleging that she had disregarded him after the child refused to go with him. This was about 5.30p.m. PW2 testified to having been told by the deceased that he had found PW1 outside quarreling with the father of her child. And that he later left the bar but came back later after 7.00p.m. PW4 testified to seeing accused in the bar at about 7.30p.m., the time of the attack on the deceased and again all this evidence was never controverted. 30.The accused alleged to have found deceased and PW1 in a compromising situation and that deceased abused him but this was only alleged during the defence. It was never raised during the trial and during the cross examination of the witnesses present to allow the prosecution to rebut it. 31.The court is inclined to believe the Prosecution’s narration of the events that led to accused attacking the deceased. He had been seen with the bag that carried the weapon which he used in assaulting the deceased. 32.The accused was at the scene about 5.30 p.m. when he disagreed with PW1. He left, but came back when he suddenly attacked the deceased. Even if he had been angered by the refusal of the child to go with him, he had time to cool off. In any case the deceased was not party to the disagreement between PW1 and the accused. 33.The prosecution evidence was not displaced as to what transpired when the deceased was attacked. I find that the defence was an afterthought and untrue. 34.By raising this defence of provocation late in his defence, the prosecution was deprived of the chance to rebut the same. The Prosecution evidence points to accused as having returned to the bar while armed and carried out a sudden attack on the unsuspecting deceased. He was not provoked in any way. 35.From an analysis of the evidence on record, it is clear that the accused was enraged when the child refused to go with him and of course PW1 had also left him; and he set out on a revenge mission. In the Duffy case Supra It was held, “…. Indeed, circumstances which induce a desire for revenge are inconsistent with provocation, since the conscious for mutation of a desire for revenge means that a person has had time to think, to reflect, and that would negate a sudden temporary loss of control, which is of the essence of provocation”. 36.Accused’s conduct after the attack buttresses the fact that he had malice aforethought. He escaped from the scene and was arrested while in hiding in Pokot Central at Lami Nyeusi on 17/5/2025, about a month after the incident. 37.I find that the Prosecution has proved that accused, with Malice aforethought, attacked and seriously injured the deceased causing his death. I find him guilty of the charge of Murder as charged and convict him accordingly. JUDGMENT DATED, SIGNED AND DELIVERED AT KAPENGURIA THIS 17TH DAY OF JUNE, 2026.HON. R. WENDOH.JUDGE.Judgment read in the presence of:-Prosecution Counsel – Mr. MokayaMr. Kachapin for AccusedAccused - presentJuma/Hellen-Court Assistants