[2017] KEHC 1404 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUNGOMA

CRIMINAL CASE NO.31 OF 2012

REPUBLIC…………………………………...PROSECUTOR

VERSUS

CHRISPINUS BEGGA BARASA……………..…..ACCUSED

JUDGEMENT

1. The accused Crispinus Begga Barasa is faced with the offence of murder contrary to Section 203 as read with 204 of the Penal Code. The particulars of the offence are that on the nights of 30th and 31st October, 2012 at Bwema village within Bungoma County, jointly with others not before Court murdered Protus Kibet Kanoti.

2. The accused having denied the charge, the matter proceeded to full hearing where the Prosecution called a total of 8 witnesses. The Prosecution’s case in brief is that the deceased and his wife PW1, Beatrice Naliaka Kibet were attacked by several people at midnight on the 30th of October, 2012. Two of the attackers went inside their house. That the accused was one of the two attackers who entered the house as he was identified by PW1 the deceased and a neighbour PW3.

3. On his part the accused denied the offence raised an alibi which was supported by his wife and a neighbour as his witnesses to the effect that on the material night they attended a funeral vigil at a neighbours until 1a.m. when they left for their homes. DW2’s evidence was that the accused did not leave their house thereafter until the following day.

4. This being a charge of murder 3 ingredients of the offence must be proved inorder to sustain the charge. Section 203 of the Penal Code provides that

“Any person who of malice aforethought causes the death of another person by an unlawful act or omission is guilty of murder.”

Section 206 defines malice aforethought as follows

“malice a forethought 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 a felony

(d) an intention by the act or omission to facilitate the flight or escape from custody or any person who has committed or attempted to commit a felony.

5. From the above therefore three ingredients need to be established

a) That a death occurred

b) Death was caused by an unlawful act or omission

c) And of malice aforethought as described by section 206 above quoted.

6. From the evidence of all Prosecution witnesses and more so PW1, PW2, PW4 and PW6 the deceased herein Protus Kibet Kanoti died as a result of injuries inflicted upon him on the 30th of October, 2012. PW6 Dr. Raymond Damba described the injuries as follows;

4cm Linear laceration on the skull

Laceration on the knee

Bilateral subdural haemotoma

He gave his opinion on the cause of death as severe head injury secondary to sharp forced trauma.

7. Again from the evidence of the Prosecution witnesses in particular PW1, PW2, PW3, PW4 and PW5 the deceased was beaten by assailants who inflicted fatal injuries on him.

PW1said in part

“They beat my husband to death

…I saw him beat him with rungu and panga. Only 2 of the assailants entered the house. There were others outside many of them. He died after the assault.

PW3on her part said

“…He was killed by thugs. I recall on 30th October, 2012 at about midnight I heard mwalimu scream.”

PW4“…It was 12. 01p.m. I heard a commotion towards my house. My father’s voice was faint towards another direction.”

PW5. “…the injured man was lying not talking or breathing”

8. From the above evidence the deceased was beaten by assailants and sustained fatal injuries. The next relevant question is whether there is evidence linking the accused herein to the attack. Was he part of the people who attacked?

PW1 stated in her evidence in chief as follows;

“…mzee screamed saying Begga why care you killing me.”

“…They had a torch that eluminated. I saw him.”

“I ran and went to the neighbours screaming as they continued to assault him.”

“I heard mzee telling the accused to take cows and not kill him. He mentioned his name Begga.”

In cross examination she maintained that she saw the accused due to the torch shown in the house though not at the face of the accused she however did not recall his clothes on the day.

PW2 on his part states that he did not see any of the assailants and he heard his mother say the assailants beat his father. He did not recognize any of the assailants as he was running and screaming. On her part PW3 said that she saw the deceased being killed but did not recognize the assailants however she says she heard deceased say

“Begga do not kill me…”

With the same breath she stated further that she did not see the weapon used. In cross examination she said she was down with malaria and with a small child and did not come out of her house. She does not know whether the accused was among the assailants.

PW4 on his part said, he heard his brother in the next room screaming and running away. He also heard his mother say Begga has finished us.

PW8 the investigating Officer on his part stated that while investigating the matter he recorded statements from PW1, PW3 and PW4. That in her statement PW1 said that when attacked she ran and hid at the back when she heard her husband say

“Councillor, councillor why are you killing me?”

Further she told the witness that the assailants left her house to her children’s house. It was this witness’s evidence that he gathered that the accused had demanded for a balance of Kshs.50,000/- from the deceased which he had not been not paid resulting into an altercation.

9. There is no doubt from the evidence on record that the deceased was attacked by a number of people and beaten sustaining severe injuries. However the evidence of the Prosecution in an attempt to implicate the accused is at variance.

The evidence PW1 given to PW6 is different information from what she narrated to the Court in relation to the attack, how she left the house and how she was able to identify the accused. Indeed her husbands’ utterance as told to PW6 is different from her evidence in Court. PW3 recanted her evidence of recognition in cross examination, whereas PW4 says he heard his mother mention the accused.

10. The 1 million dollar question is whether the Court can rely on such distorted evidence so as to link the accused person to the offence.

11. The reasons of why the accused attacked the deceased is also contradictory. PWI does not allude to a debt or any request for a loan, on his part PW2 says that the accused demanded from his father Kshs.300,000/- which his father was unable to pay. On his part PW4 says the accused wanted him to take a loan of Kshs.300,000/- in order to finance the accused campaign which he declined as his father had already paid the accused the 250,000/- which the accused demanded inorder to get PW4 employed. PW6 on his part says that he was informed that the accused had demanded Kshs.300,000/- to get PW4 employed had already been paid 250,000/- but there was a balance of 50,000/- which brought the bad blood.

12. In my opinion the Prosecution from evidence adduced failed to prove to the required standard that the accused had formed any intention of killing the deceased and that he was part of the assailants who attacked the deceased on the fateful night of 30th October 2012.

13. The yardstick on standard of proof in all Criminal trials is “proof beyond all reasonable doubt.” It is the “thread of the golden chain” that rans through Criminal Cases. See Woolmington Vs D.P.P. (1935) AC 462

14. I find the Prosecution case to be full of contradictions to the extend that the Court cannot safely rely on the evidence on record to convict the deceased. The contradictions will be re-solved in favour of the accused.

15. Accordingly the accused is hereby acquitted. He is set free unless there is any other lawful reason to continue holding him.

DATED and DELIVERED at BUNGOMA this 5th day of October, 2017

ALI-ARONI

JUDGE