[2022] KEHC 12520 (KLR)

Republic v Chobo & 2 others (Criminal Case 9 of 2017) [2022] KEHC 12520 (KLR) (19 May 2022) (Ruling)

Neutral citation: [2022] KEHC 12520 (KLR)

Republic of Kenya

In the High Court at Kabarnet

Criminal Case 9 of 2017

WK Korir, J

May 19, 2022

Between

Republic

Prosecution

and

Cornelius Turgut Chobo

1st Accused

Nicolus Kipkemboi Rotich

2nd Accused

Solomon Kipkenei Chamase

3rd Accused

Ruling

1. The accused persons, Cornelius Turgut Chobo, Nicolus Kipkemboi Rotich and Solomon Kipkenei Chemase, have been charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars of the offence state that the accused persons between the 23rd and 24th November, 2012 at Oinabmoi area, Kiboino Location in Baringo Central District within Baringo County they jointly with others not before Court murdered Amos Kandie.

2. The accused persons pleaded not guilty to the charge facing them and the matter was set down for hearing.

3. The prosecution called a total of eight witnesses in support of the charge facing the accused persons. PW1 Gideon Kibet Ayabei told the Court that on November 23, 2012 he was selling alcohol at his place of business known as Pum Pum Wines and Spirits when at around 5. 00pm the deceased who was his customer and who he knew as Kipkangila went and ordered for a bottle of Richot and a soda. He served him and the deceased went and took his drink within the premises. After about one hour a lady who was also his customer arrived and joined the deceased. She ordered for a drink and he served her. The two enjoyed their drinks until about 9. 00pm when they left. The next day in the morning he received information that the deceased had been killed. When cross-examined by counsel for the accused persons, PW1 stated that he knew the accused persons but he had not seen any one of them at his place of business on the day the deceased was murdered.

4. PW2 Micah Katuman stated that on November 23, 2012 he was at his shop when he saw the deceased drinking. The deceased was drinking with the deceased’s niece called Gladys and they were joined by a contractor who later left. PW2 testified that he saw the deceased drive away at about 9. 00pm but he did not know whether there were other occupants in the car. He, however, did not see the niece of the deceased after the vehicle left. PW2 stated that he later closed the shop and slept there.

5. PW2 testified that at about 11. 00pm he received a call from the 3rd Accused’s mobile phone number. The person who spoke to him was the 1st Accused. The 1st Accused told him that a person was being beaten. The telephone was not clear and he told the caller to report the matter to administration police officers. According to PW2 the 1st Accused did not say who was being beaten. When he called the accused persons later, they told him that they had gotten help and the witness assumed that it was the administration police officers who had assisted them. The next morning, he received a call from the area chief that his friend Amos Kandie had been killed but without telling him how he had met his death. Police officers later went and asked him what he had seen. He recorded a statement with the police.

6. During cross-examination, PW2 testified that some people he had reported for stealing his donkey had attempted to fix him for the killing of the deceased. His evidence was that the deceased was killed about three kilometers from his home. PW2 stated that the call he received from the 1st Accused through the 3rd Accused’s phone was not clear. PW2 told the Court that Gladys was a relative to the deceased.

7. PW3 Sila Komen Kandie stated that on November 24, 2012 he received information from a cousin that his father Amos Kandie had been attacked and killed. He went to the police station and confirmed that the information was true. On November 27, 2012 he identified the body of his deceased father at Kabarnet County Referral Hospital mortuary and post-mortem was conducted on the body. He stated that a post-mortem report was filled and he identified it on Court. PW3 told the Court that the police informed him that his father had been attacked by unknown youths.

8. In response to questions put to him by the advocates for the accused persons, PW3 stated that he was not at the scene of crime when his father was attacked and killed. His evidence was that he was not told by the police why his father had been attacked and killed by the youths.

9. PW4 Julius Kiplagat Kandie stated that he witnessed post-mortem on the body of the deceased who was his older brother.

10. PW5 Magdaline Kirwa told the Court that on November 23, 2012 at 8:30pm she closed her shop at Ainamoi and proceeded to the nearby bar of one Kipkoros to buy a bottle of beer to take home. On the way she saw the vehicle of the deceased parked near an acacia tree. There were people in the vehicle and she could hear noise coming from the car. When she reached the bar and asked the attendant for beer, the attendant told her he could not open the bar because he had heard the commotion in the vehicle and he feared he may be attacked and robbed if he opened the bar. She left and on her way she passed by the car and asked some youths to tell her what was going on. They told her that the deceased had been found with someone’s wife.

11. PW5 testified that the deceased who was called Kanyilat was her in-law and she heard the people inside and outside the car tell the deceased to defend himself or he would be taken to the police station. She proceeded home and as she approached her house she met a lady neighbor by the name Sote and told her what she had seen. She asked Sote how they could help and she replied that they should leave the matter to God because they were women and there was nothing much they could do.

12. It was the testimony of PW5 that she went back to the Centre with a view to seeing what she could do for the deceased. She met a boda boda operator who went towards the vehicle. She went to some hotel and took tea as she could not find anybody to help the deceased. When she later wanted to go back to the car to see what was happening, she met with the vehicle being driven towards Kabarnet. She, however, did not know who was in the vehicle. The next morning after she opened her shop, she heard on radio that Kanyilat had died. The witness told the Court that she did not know the 1st and 2nd accused persons but the 3rd Accused was the child of her uncle called Chemase.

13. During cross-examination, the witness told the Court she did not see anybody because it was dark. She stated that at one time she saw the car of the deceased being opened by police officers and the deceased fell out of the vehicle.

14. Dr. Wangari Wambugu, a pathologist at Baringo County Referral Hospital, testified as PW6 and informed the Court that she was giving evidence in respect of a post-mortem conducted on the body of Amos Kiprotich Kandie by Dr. Ngulungu Titus of Nakuru County Hospital. Her testimony was that the post-mortem disclosed injuries on the head, chest, upper limbs and lower limbs. The conclusion was that the cause of death was fat embolism following extensive soft tissue trauma by blunt force in keeping with homicide. The witness produced the post-mortem report as an exhibit.

15. The evidence of PW7 Police Constable Caleb Owino was that on November 24, 2012 at about 9. 30pm while at Ainamoi AP Post he received a call from one Corporal Amos Kibet that there was a person who was being beaten by members of the public at a junction along Iten-Kabarnet Road. PW7 organised his colleagues for the rescue and before they could even leave the Post a boda boda rider brought a similar report to them. The witness told the Court that although the boda boda rider offered to ferry them to the scene, they declined his offer and instead walked there on foot with a colleague who had since passed way. Upon arrival at the incident site they saw about 30 people. On the murram road there was a car and an unconscious man lying at the edge of the road. The people were beating the man with sticks. The people refused to retreat after he told them to leave the man alone. This forced him to cock his gun and fire in the air and that is when the people dispersed. There was, however, one young man who refused to leave and upon enquiry he told them he was the son of the woman who was lying unconscious in the back seat of the car.

16. PW7 testified that with the assistance of his colleague and others they put the man inside the vehicle. Since he knew how to drive, he together with his colleague and the young man took the woman and the man to Kabarnet Police Station where they reported the incident before taking the man and woman to Kabarnet District Hospital. He left the injured man and woman being attended to by the medics and drove back to Kabarnet Police Station where he handed over the motor vehicle and its ignition keys to the police.

17. The next day DCI officers from Kabarnet Police Station visited the scene and that is when he learned that the man he had rescued and taken to hospital had died. They proceeded to the scene where they collected various items. His testimony was that the man and woman were half naked when they found them and they could not speak.

18. PW7 identified the 1st Accused as the young man who had refused to leave the scene. He identified the 3rd Accused as the boda boda rider who had gone to the Post and reported to them that there was a person who was being beaten.

19. Upon cross-examination by counsel for the accused persons, PW7 stated that when he cocked his gun the 1st Accused did not run away. His testimony was that there were about 30 people at the scene but since it was at night he could not identify any of the people. PW7 explained that they declined the ride offered by the 3rd Accused because they feared that they could be attacked.

20. The evidence of PW8 Inspector of Police Thomas Ouma is what appears to tie the accused persons to the demise of the deceased. PW8 started his testimony by reiterating the evidence of PW7. He also told the Court that on November 24, 2012 at around 9. 00am he was instructed by his boss the then DCIO, Kabarnet to take over a murder case from Kabarnet Police Station. The case was at that time being handled by Police Constable Masibai. The witness testified that having received an overview of the case he proceeded with other police officers to Ainabmoi AP Camp where they met PW7 who led them to the scene of crime. At the scene they recovered various items including sticks that were allegedly used to assault the deceased.

21. PW8 testified that he drew a rough sketch plan of the scene which he later converted into a fair copy. According to PW8, he learned at the scene that the deceased, together with the mother of the 1st and 2nd accused persons, were on November 23, 2012 drinking at Bum Bum Wine and Spirits joint at Kiboino. They left together in the deceased’s motor vehicle at around 9. 00pm to the place where they were attacked.

22. The evidence of PW8 was that there were foot marks and skidding at the scene which were signs of a struggle. He learned that the deceased was having an affair with the woman who was with him in the car but he could not establish if they were found making love. When he interrogated the lady who was with the deceased at the time of the attack, she told him that she could not remember what happened between the bar and the hospital where she regained her consciousness.

23. PW8 stated that they visited Bum Bum where the bar attendant confirmed that the deceased and the woman were in the premises and left at about 9. 00pm. According to PW8, the owner of the bar who was present told them that after the deceased and the woman had left, he received a call from the 3rd Accused but they could not communicate well. When he called back and talked to the 2nd Accused, the 2nd Accused informed him that things were not well as a bad thing had happened. PW8 told the Court that the bar owner was called Micah and had testified as PW1.

24. PW8 told the Court that when he interrogated the accused persons they informed him they were looking for goats that had strayed and that is when they found the deceased being subjected to mob injustice. The witness told the Court that the 1st and 2nd accused persons who were brothers were being carried by the 3rd Accused on his motor bike.

25. According to PW8, one of the reasons why he arrested and charged the three accused persons is because they came from the vicinity of scene of crime. He stated that the area was not densely populated at that time and the accused persons ought to have identified members of the mob that beat the deceased. In further support of his decision to charge the accused persons, PW8 stated that if the deceased and the woman had been found committing an indecent act they would both have been beaten but in this case it was the deceased alone who was attacked.

26. PW8 testified that the 1st and 3rd accused persons were arrested on November 28, 2012 whereas the 3rd Accused person was arrested on November 28, 2012.

27. It was PW8’s testimony that on November 26, 2012, a crime scene investigator took photographs of the deceased’s motor vehicle and the 3rd Accused’s motor cycle at Kabarnet Police Station. Thereafter the investigator visited Kabarnet District Hospital mortuary and took photographs of the body of the deceased from various angles. The witness produced the photographs and the report of Sambu Wafula of Crime Scene Support Services, Nakuru as exhibits.

28. PW8 told the Court that the father of the 1st and 2nd accused persons recorded a witness statement but committed suicide in December, 2012. Further, that Gladys recorded a statement and was to be called as a witness in this matter. It is observed at this stage that Gladys was not called as a witness by the prosecution.

29. When cross-examined by the advocates for the accused persons, PW8 stated that apart from the accused persons, none of the other 30 people who were alleged to have been at the scene of crime was arrested. He stated that the accused persons trailed the woman and PW1 placed the 2nd and 3rd accused persons at the scene. Asked why he had decided to charge the accused persons, PW8 stated that one of the reasons was that they could not identify any member of the crowd that attacked the deceased.

30. PW8 stated that PW7 placed the 1st Accused at the scene but could not tell if the 2nd and 3rd accused persons were at the scene. The witness conceded that there was no witness who saw the accused persons beat the deceased.

31. PW8 stated that the accused persons kept checking in and checking out of Bum Bum bar. He, however, averred that he did not know if PW1 testified to that effect in Court. The witness stated that the 1st and 2nd accused persons were the children of the woman who was with the deceased. The witness accepted that the woman was unconscious and was escorted to the hospital by PW7 and the 1st Accused. PW8 also stated that the woman was too drunk and had to be given a drip in hospital. According to PW8, when the woman was examined, no spermatozoa was seen.

32. Pressed to state why he charged the 3rd Accused, PW8 stated that he did so because he is the person who took the 1st and 2nd accused persons to the scene. His evidence was that the 3rd Accused assisted in the commission of the offence.

33. When PW8 was re-examined by counsel for the State, he told the Court that he charged the accused persons because they were placed at the scene of crime. He stated that he disagreed with their claim that they were looking for goats that had strayed. The witness insisted that PW1 mentioned that the 3rd Accused was trailing the woman and that either the 1st Accused or the 2nd Accused was also seen at the bar. PW8 reiterated that PW7 linked the accused persons to the scene and the prosecutor agreed with his recommendation that the accused persons be charged for the murder of the deceased.

34. The question to be answered at this stage is whether the prosecution has established a case warranting the placing of the accused persons on their defence. Section 306(1) of the Criminal Procedure Code obligates this Court to record a finding of not guilty for an accused person if it considers that there is no evidence that the accused person committed the offence. On the other hand, if this Court considers that there is evidence that an accused person committed the offence, then Section 306(2) & (3) of the Criminal Procedure Code requires that the accused person be called upon to enter his defence.

35. At this stage in the trial, this Court is being asked to decide whether the evidence adduced by the prosecution establishes a prima facie case against the accused persons. Since a finding of guilty or not guilty is an individual affair, the evidence adduced must be separately considered against each of the three accused persons and a decision made as to whether a case has been made to warrant each accused person being asked to make a defence. In Republic v Abdi Ibrahim Owl [2013] eKLR 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”. “Prima facie case” is defined by the same dictionary as “The establishment of a legally required rebuttable presumption”. To digest this further, in simple terms, it means the establishment of a rebuttal presumption that an accused person is guilty of the offence he/she is charged with.”

36. I think, in deciding whether a prima facie case has been established or not, the proper question for the court to ask itself is whether based on the evidence adduced by the prosecution a conviction will ensue were the accused person to exercise the constitutional right to remain silent. If from the evidence adduced by the prosecution there is no basis for presuming that the accused committed the offence, then the court should not place an accused person on his defence. Placing an accused person on his defence based on flimsy evidence will require the court to say a fervent prayer that the accused will say something in his defence. If at the close of the prosecution no case has been made against the accused person, then it means that no rebuttable presumption has been made that the accused person committed the offence. To put the accused person on his defence where no presumption of guilt has been established through the prosecution evidence is highly likely to result in violation of some of the norms under the fair trial doctrine under Article 50 of the Constitution to wit the right to be presumed innocent until the contrary is proved; to remain silent, and not to testify during the proceedings; and to refuse to give self-incriminating evidence.

37. In Ronald Nyaga Kiura v Republic [2018] eKLR it was held that:“22. It is important to note that at the close of prosecution, what is required in law at stage is for the trial court to satisfy itself that prima facie has 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 rebutted 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 concerned 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.”

38. In the case at hand, there is no dispute that the deceased met his death in the most disconcerting manner in the hands of the moral police simply because he had allegedly been found in a compromising position with another man’s wife. Those who beat up the deceased and inflicted fatal injuries on him knew very well that what they were doing was likely to result in the loss of the life of the deceased. The post-mortem report that was produced as an exhibit confirmed that the deceased succumbed to the injuries inflicted on him by the mob. In such circumstances it is easy to reach the conclusion that the life of the deceased was taken away in an unlawful manner.

39. The only question would then be whether the prosecution has successfully linked the death of the deceased to all or any of the accused persons. It is necessary to note that I took over this matter when PW8 was the only prosecution witness yet to testify. The evidence as recorded by the judges who previously heard this matter will therefore determine the outcome of this case.

40. The evidence of PW8 is what seems to connect the accused persons to the crime. PW8 who was the investigating officer stated that the accused persons were monitoring the deceased as he enjoyed his drink with the mother of the 1st and 2nd accused persons. He testified that the owner of Bum Bum Wine and Spirits outlet told him that he had seen the 3rd Accused at the bar. PW8 also testified that a bar attendant told him that the 1st and 2nd accused persons had also gone to the bar.

41. A perusal of the evidence of PW1 does not disclose that he saw the 3rd Accused at his business premises as the deceased and the woman were taking their drinks. PW8 did not name the bar attendant who allegedly told him that the 1st and 2nd accused persons went to the bar. A perusal of the Court record shows that none of the eight witnesses who testified for the prosecution stated that he or she worked for PW1 as a bar attendant. The evidence of PW8 in that regard was speculative and fell into the category of rumours that normally swirl around whenever an incident of this nature occurs.

42. PW8 told the Court that PW1 told him that he received a call from the 2nd Accused on the night of the murder informing him that there was an incident. However, PW1 did not mention receiving such a call in his evidence. Instead, it was PW2 who stated that he received a call from the 1st Accused, and not the 2nd Accused, and that the 1st Accused was using the 3rd Accused’s mobile phone. The evidence of PW2 as captured in the Court record is that the communication was poor. The information he received from the 1st Accused was that someone was being beaten and he advised that the matter be reported to the police. PW2 stated that he later called the 1st and 3rd accused persons and they informed him that they had received help and he assumed the help they had received was from the police. There is nothing to incriminate the accused persons in this conversation. When they found somebody being beaten they sought help. They later informed PW2 that they had been assisted and this information was correct because the deceased and the woman had been rescued by PW7 and taken to hospital.

43. The other reasons why PW8 arrested and charged the accused persons is the claim that they failed to identify any of the people who attacked the deceased; that their claim that they were tracing lost goats was unbelievable; that the mother of the 1st and 2nd accused persons who was with the deceased did not receive any injury; and the PW7 placed the accused persons at the scene.

44. Again, the evidence of PW8 cannot be used to reach the presumption that the accused persons had anything to do with the death of the deceased. Indeed, PW8 admitted that the mother of the 1st and 2nd accused persons was unconscious and was later put on a drip at the hospital. He seems to imply that she was put on a drip because she had taken too much alcohol. The only observation I can make is that PW8 was not a medical officer and he could not authoritatively say that the woman was not injured. Only a medical officer or the woman herself could have told the Court if she was injured. In any case, no reason was advanced as to why the woman who was a very important witness and allegedly recorded a statement was never called to testify.

45. On PW8’s assertion that PW7 placed all the accused persons at the scene, it is important to note that PW7 only talked of the 1st Accused being at the scene. The circumstances under which the 1st Accused was found at the scene of crime were clearly narrated by PW7 and at no point did PW7 state that he found the 1st Accused attacking the deceased. PW7 stated that when he cocked his gun the members of the crowd dispersed leaving the 1st Accused behind. When PW7 asked him why he did not leave, the 1st Accused told him that the unconscious woman at the back of the car was his mother. The 1st Accused cannot be said to have killed the deceased simply because of the act of standing with and by his mother. That the 1st Accused was drawn to the scene because of the welfare of his mother is confirmed by the fact that he actually escorted her to the hospital.

46. As for the 2nd and 3rd accused persons, PW7 was clear that he did not see them at the scene of crime. In fact, PW7 was candid that it was dark and he could not identify any of the close to 30 people they found at the scene. It is important to observe that PW7 told the Court that as they were preparing to go to the scene, the 3rd Accused arrived and reported to them the incident. PW7 was clear that the 3rd Accused even offered to give them a ride to the scene but they declined the offer. The case of the 3rd Accused gives credence to the street saying in our country that you can only act as a good Samaritan at your own peril because there is every likelihood that you will be made the scapegoat for the incident you have reported to the police or assisted in taking the victim to hospital.

47. The fact that there was no basis for charging the accused persons was confirmed by the evidence of PW3 who stated that when he went to the Kabarnet Police Station he was informed that his father had been attacked by unknown youths. Further confirmation of the innocence of the accused persons is found in the testimony of PW2 who stated that some people wanted to fix him for the murder of the deceased. That means the people who killed the deceased were not known.

48. None of the prosecution witnesses saw any of the accused persons beat the deceased. The difficulty in investigating a case like the one before this Court is the fact that the society thinks that the perpetrators of the offence were right in attacking the deceased. Nobody is therefore willing to step forward as a witness. Those who do good acts like the 3rd Accused find themselves on the wrong side of the law.

49. In a trial that has taken long like this one which started in 2012 at Eldoret High Court and ended here in 2017 when this Court was inaugurated, the pain and suffering visited upon accused persons who are eventually acquitted cannot be quantified. It is appreciated that on the other hand the pain suffered by the relatives and friends of the deceased cannot also be quantified. However, charging the wrong persons cannot help to assuage the pain inflicted on the victims of the heinous crime.

50. The obvious outcome of this matter is that from the evidence adduced by the prosecution, none of the accused persons is guilty of the murder of the deceased. A finding of not guilty is entered in accordance with Section 306(1) of the Criminal Procedure Code and each accused person is set free.

DATED, SIGNED AND DELIVERED AT KABARNET THIS 19TH DAY OF MAY, 2022. W. KORIR,JUDGE OF THE HIGH COURT