[2022] KEHC 3343 (KLR)

Republic v Cheruiyot (Criminal Case 35 of 2019) [2022] KEHC 3343 (KLR) (2 June 2022) (Ruling)

Neutral citation: [2022] KEHC 3343 (KLR)

Republic of Kenya

In the High Court at Nakuru

Criminal Case 35 of 2019

TM Matheka, J

June 2, 2022

Between

Republic

Prosecution

and

Biden Kiplangat Cheruiyot

Accused

Ruling

1. The accused person Biden Kiplangat Cheruiyot is charged with Murder Contrary to Section 203 as read with Section 204 of the Penal Code. It is alleged that on 23rd July 2019 at Sigaon Village Njoro Sub County Nakuru County he murdered Boaz Wendot Kaptum.

2. The prosecution called nine (9) witnesses at the close of what the court had to determine whether or not a prima facie case has been made out against the accused to warrant his being put on the defence as per Section 362 of the Criminal Procedure Code.

3. Briefly the deceased lived with the family of PW1, and used to sleep in the same room as PW7. PW1 was running an MPESA shop at Sigaon. Each evening, the deceased would go to Sigaon to meet the PW1, and they would walk back home together.

4. On this 23rd July 2019, PW1 waited in vain for the deceased, he did not show up, and he assumed he was not coming that day, so he left and went home. At home the deceased was not there, and there was concern, and the possibility that he could have left for his parent’s home.

5. The PW1 went to sleep with his younger brother, but stayed up late still expecting the deceased. At some point he went out to relieve himself, when he came back in he noticed that the sofa in the sitting room had moved a bit. He had a bad feeling and he directed his torch there only to see a person sleeping under his sofa holding a rungu. It was the accused. He noticed that his clothes were wet especially his trouser.

6. When the accused saw he had been seen, he quickly identified himself. The PW1 called him out. He told him he has been assaulted by some people in the home where he slept on suspicion he had something to do with a missing girl. He even showed PW1 his torn trouser, PW1 told him they could sleep till morning. However at some point he decided to go tell his father PW6, while handing over his MPESA proceeds, PW6 also went to check on the accused. He suspected the accused person had intentions of stealing the MPESA money.

7. The accused told him he had been sent away from his aunt’s place. PW6 told him they would go see the aunt the following day after breakfast.

8. The following day accused was not there. He had left at about 4. 00 a.m.

9. Two days later the body of the deceased was found at Kalyang’aa river. He had been killed with a sharp object that had cut the major blood veins at the neck.

10. A week later, 30th July 2019 PW1’s mother, PW4, while cleaning PW1’s room found a knife under the bed. This was connected to what happened on the 26th July 2019, when the body. There was found a knife handle at the scene which was identified by PW5 as the handle of a knife the accused was using on 19th July 2019 where she and accused were involved in slaughtering of a cow.

11. The two exhibits, the accused’s person’s conduct, on the night the deceased went missing were placed together and as they pointed to the accused having had the knife on 23rd July 2019 the night the deceased went missing, the knife being found where he had been hiding and the handle near where the body was found.

12. From the foregoing there appears to be circumstantial evidence that sets a prima facie case to warrant the accused being put on his defence in accordance with Section 306(2) of theCriminal Procedure Code.

DATED, SIGNED AND DELIVERED VIRTUALLY THIS 2ND DAY OF JUNE, 2022. MUMBUA T MATHEKAJUDGEIn the presence of;CA EdnaFor state Ms. Murunga N/AFor accused: Ms. SabayaAccused: present