[2022] KEHC 2512 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAKURU

CRIMINAL CASE NUMBER 61 OF 2014

REPUBLIC..........................................................................................PROSECUTOR

VERSUS

DENNIS KIPROTICH CHEPKWONY...................................................ACCUSED

JUDGMENT

1. Dennis Kiprotich Chepkwony was charged with the offence of Murder Contrary to Section 203 as read with Section 204 of the Penal Code.

2. It was alleged that on 7th may, 2014 at Timbwalo Village Tinet Sub-Location in Kuresoi South District within Nakuru County he murdered David Kipyegon Chirchir.

3. Plea was taken on 2nd February, 2017. Accused pleaded not guilty to the charge. The matter was partly heard by Odero LJ, who heard three (3) witnesses. I heard PW4 and the prosecution closed its case. I also heard the defence case.

4. PW1 Joseph Chirchir told the court that the deceased was his brother and the deceased and the accused were neighbours. That on 7th May, 2014 he was called by the village elder one Richard Towett who told him that his brother had been beaten and killed. He rushed to the scene. He found his brother lying dead, with cut wounds on neck and head. His neck was nearly severed. He noted that his brother had a knife on his body which was still in its sheath. The police came. They entered accused’s house. He was not in but they recovered a long knife. He said the knife had blood on it. On cross examination he told the court that it was Towett who told him that the accused had run to the police station and reported that he had beaten someone. He said he only knew the accused by one name Dennis. He said the police searched the accused house for about ten (10) minutes then recovered accused’s knife. It was not in its sheath. He said he did not know the accused’s knife.

5. PW2 Daniel Wainaina produced the pathologists report on behalf of Dr. Sammy Getutu. The body had deep cuts on the head, neck, shoulder, cut wounds on right fingers. Internally the trachea was deem cut between 2nd and 5th ring. Cut on the right common carotid artery, right internal jugular vein cut on the left internal jugular. On head, fracture of skull from parietal area, right extending internally right zygomatic to the anterior aspect of the auricular area. Nervous system, cut on the right hemisphere, deep with hemorrhage. Cause of death: Severe hemorrhage leading to shock by a sharp object. On cross examination he said the history was that the deceased was killed by a neighbour following misunderstanding.

6. PW3 Ceddy Chirchir was a neighbour to both the accused and the wife of the deceased. She testified that on 7th May 2014 at 6. 00 pm, she was home with her husband. He then went out and never returned home the whole night. At some point she went out to look for him, while behind her house the accused called her from his compound telling her that he had finished the work, who would she boast to now? She said that it was 6. 00pm she saw the deceased on the ground with accused cutting his neck. She said she screamed and the next thing she found herself in the neighbours house where they took her. She said she was pregnant then.

7. The next day she recorded her statement. She said she saw the accused person cut her husband. It was 6. 00 p.m. Shown the exhibit in court she said it was not the knife she had seen the accused with. What she had seen was longer knife, a simi. She testified that she was not aware of any problem between her husband and the accused. That the only problem was between herself and the accused person. That the accused had threatened to burn down her house and beat him. That she had reported to the chief. That after accused killed her husband he took himself to Keringet Police Station. On cross examination she told the court that her grudge with the accused was from March 2014. She said the accused worked with a power saw. That he had worked for the deceased severally. She was not aware that the deceased owed accused money. She said on the material date the deceased was drunk. She gave him supper at 6. 00 p.m. but he went outside and she followed him to call him to come and eat his food. She went behind the house and that is when accused called her “Ceddy, I have finished the job.” She screamed. She saw accused’s wife come out of the house but did not recall what happened.

8. She denied that she was saying she saw accused cutting her husband because of a grudge. She said when the accused told her “Nimemaliza kazi” he was busy cutting her husband. She saw him lift the simi and cut him. She said that it was not usual for her husband to go to the accused’s compound.

9. On re-examination she said she did not know what her husband had gone to do in the accused’s house. She did not know the owner of the knife she saw. She said her husband also had a simi like the one she had seen in court. That the knife she saw with accused was longer.

10. PW4 No. 67533 Cpl Francisco Oduor Ochido testified that on 7th May 2014, about 6. 00 p.m. he was at the Kiptagich Police Post in the company of PC Geoffrey Jefwa when the accused appeared from a path opposite the station. He was accompanied by six (6) dogs. Cpl Oduor recalled that the same person he saw had been at the station a week earlier complaining about a certain lady from whom he had performed some lumbering job, and she had not paid him for the job. He had also reported that he had reported at Kiptagich Police Station, and they at the Police Post had told him that the police station will investigate.

11. Now this report was that the same lady had come to quarrel him. As they were talking Cpl Oduor received a call from a village elder asking whether there was a person accompanied by dogs at the police post. The village elder told Cpl Oduor that that person had murdered a person at Timbwato Village and ought to be arrested and placed in cells. When he asked the person whether that was true, the response he got was that the person had gone to quarrel him. They immediately locked him up and informed the OCS Olenguruone Police Station.

12. About 7. 00 p.m. they proceeded to the scene and found the body of David Chirchir. He was lying in the pool of blood in the cattle enclosure. He had deep cuts in the neck, side of face, shoulder. His knife was still in its sheath. They found the murder weapon in the bedroom of the accused’s house. It had blood on it. He handed over to the OCS CI Otieno. After making inquiries and taking the contacts of witnesses they took the body to Molo Sub Divisional Hospital and accused to Olenguruone Police Station. On 10th May 2014 he attended the post mortem together with brother of deceased.

13. According to his investigations deceased was a truck driver who was mostly away from home. There had been quarrels between his wife Zedi Cherono and the accused. That when he came home the wife told him about it. He went drinking and while there vowed to visit the accused. That he went home armed himself and went to accused’s homestead. A quarrel ensued, an affray followed the accused disarmed the deceased and administered the injuries found on the deceased. He then surrendered.

14. He produced the sword as P. Exhibit 2 a maroon sheath as P. Exhibit 2(a).

15. On cross examination by Mr. Orege for the accused person he told the court that the accused had reported the case of the debt at Keringet Police Station. That on the material date the deceased went drinking and while there vowed to go and visit the accused. That he went to the accused’s home. That when they (police) visited the scene they left the accused at the police station. That they found the accused’s wife at home and that she was present when they recovered the sword in his house. He said he did not do an inventory of the recovery, that he just collected the weapon and handed it over to the OCS.

16. On 2nd February, 2021 the prosecution closed its case and the accused was put on his defence.

17. The accused person testified that on 7th May, 2019 at about 5. 00pm he was at home weeding his tree seedlings when he heard his wife say: Karibu! Welcoming a visitor. He saw that it was his neighbour David Kipyegon Chirchir. He proceeded to the house to welcome the visitor. The neighbour enquired about the disagreement between him the accused and his (deceased’s) wife. He told him that his wife owed him Ksh.6,000/= being payment for splitting timber for, a debt he had even sent elders to demand on his behalf.

18. It was then that the neighbour asked him whether he was a man. They were now not inside the house but in the homestead. The neighbour produced a knife, a njora from his jacket and began to attack him. The accused jumped out of the neighbour’s way. His wife screamed and ran out of the compound. He tried to get away while following his wife. His children also scattered. It was then that the neighbour began to follow one of the accused’s children asking the accused who he was leaving the child to. The other neighbours had began to pay attention. He was shocked by the neighbour’s question and action of following his child while armed. He saw that the neighbour was raising the knife to cut his child. He ran and got hold of him and a struggle ensued for possession of the knife. He said they struggled for long, fell and rolled on the ground. He saw blood and thought the deceased had cut him. He threw the knife away; the neighbors came and took his children to safety. He said he pushed him aside and ran to the police station to report the incident. He confirmed that the incident happened in his homestead.

19. He testified that the wife to the deceased had him arrested and charged but he was acquitted. That her husband had gone to that house to attack him. That he went to the police because the deceased was threatening his family. That before he deceased went to his house he had no intention of attacking him and had the deceased not gone to attack him, the incident would never have happened.

20. On cross examination, he said that he and the deceased did not have any quarrels. That he did not have any evidence to show that the deceased’s wife owned him Ksh.6,000/=, PW3 never witnessed the incident as she ran away immediately the deceased removed a knife and that during the struggle he was not cut/injured. He said he was not taken to hospital by the police though he suffered body pains.

21. DW2, Monica Chepkwony, accused person’s wife, testified that on the fateful day the deceased came to her home, she greeted him but he did not respond. When her husband, the accused herein, greeted the deceased and he got hold of his hand and produced a knife. Upon witnessing that she ran away while screaming to her grandmother’s place. She confirmed her children were not injured and that she did not witness the accused stab the deceased.

22. DW3, David Kibet Sigilai, a neighbor to the accused, testified that he was informed about the incident on phone by his neighbors. He went to the scene and saw the deceased body with deep cut on the neck and the ear. He confirmed he never found the accused as he had gone to report the incident at the police station.

23. The accused filed his submissions through his advocate, Mr. Orege dated 1st November, 2021 on 9th November, 2021. It was submitted that the deceased’s wife PW3 confirmed that she had a problem with the accused person therefore there was bad blood between them. That she also confirmed that the accused person used to work for them using his power saw and the knife in court apparently recovered from the scene was similar to the deceased’s knife.

24. It was submitted that the deceased went to the accused person’s house armed with a Maasai sword and intended to cause grievous harm to the accused and potentially to his wife and children and in the circumstances the accused was under an obligation to defend himself, his family and property against provocation as envisaged by section 17 as read with section 208(1) of the Penal Code and he should not bear any criminal responsibility.

25. The accused relied on the case of Stephen Kipkeror vs Republic [2002]eKLR where the Court of Appeal at page 305 of the Judgement defined the term provocation; on the case of Ahmed Mohamed Omar & 5 Others vs Republic [2014]eKLR where the court observed that;

“If an attack is so serious so that it puts someone in immediate peril, then immediate defensive action may be necessary. If the moment is one of crisis for someone in immediate danger, he may avert the danger by some instant action”

26. It was further submitted that PW4’s testimony confirmed that the PW3 owed the accused Kshs.6,000/= for the work he had done for her which debt she had declined to settle and the accused had even reported the matter to Keringet Police Station.

27. PW4’S testimony that they found the murder weapon in the accused’s house is not credible. The first question is why they left the accused at the police station when they went to visit the scene and to search for the murder weapon yet he had taken himself to the police station. Secondly, PW3 the alleged eye witness to the offence told the court that the knife produced before court was not the one she had seen the accused cutting her husband with. It was argued that the prosecution failed to discharge the burden of proving beyond any reasonable doubt that the accused person committed the offence and urged this Honorable court to acquit him.

28. The prosecution made oral submissions that their duty is to establish that the accused herein caused death of the deceased with malice aforethought. That it is not in dispute that the deceased died, all prosecution witness testified to that fact.

29. On whether the accused caused the death of the deceased, the prosecution relied fully on the evidence of PW3 who stated that she saw the accused cutting the deceased on the neck inside his house.

30. On whether the accused caused the deceased death intentionally, they submitted the facts leading to the death of the deceased fall under section 206 of the Penal Code and that the accused had that intention. That as per the evidence of PW3 the accused did cut the deceased around the neck which act showed he had intention to cause grievous harm/death. That it was not accidental since the accused did not take the deceased to the hospital and he threatened to kill PW3 who had come to rescue him.

31. They submitted that the defence of provocation was unavailable to the accused as the evidence on record shows that the deceased went to the accused’s house unarmed and the knife that was recovered belonged to the accused.

32. They concluded by stating that all ingredients of murder were proved beyond reasonable doubt and the accused should be sentenced according to the law.

ANALYSIS AND FINDINGS

33. For Prosecution to secure a conviction on the charge of murder, it has to prove three ingredients against an Accused person. In Anthony Ndegwa Ngari vs Republic[2014] eKLR, the elements of the offence of murder were listed as follows: -

(a) the death of the deceased occurred;

(b) that the accused committed the unlawful act which caused the death of the deceased; and

(c) that the accused had malice aforethought.

(a) The death of the deceased

34. The death of the deceased is not in dispute. Postmortem report produced confirms the cause of deceased’s death was severe hemorrhage leading to shock by a sharp object.

(b) Proof that accused committed the unlawful act which caused the death of the deceased

35. During hearing the accused testified that the deceased came to his house armed with a knife. That when he saw the deceased about to cut his child with a knife he got hold of his hand and a struggle ensued. The said struggle took long, they fell, rolled on the ground and he saw blood and pushed the deceased aside and ran to the police station to report the incident.

36. It is clear that the accused was the only one who attempted to disarm the deceased on that fateful day. The evidence on record shows that the deceased sustained severe injuries. No one else was in a fight with the deceased save the accused person. It is his evidence that the deceased sustained the injures while the struggled over the knife. The deceased succumbed to injuries sustained in this struggle.

(c) Proof that deceased had malice afterthought

37. The court must determine whether accused, with malice aforethought inflicted the injuries that resulted in the death of the deceased. Malice aforethought was defined in the following cases;

Nzuki vs Republic [1993] KLR 171 where the Court of Appeal held that before an act can be murder, it must be aimed at someone and in addition it must be an act committed with the following intentions, the test of which is always subjective to the actual accused.

- Intention to cause death

- Intention to cause grievous bodily harm

- Where accused knows that there is a risk that death or grievous bodily harm will ensue from his acts and commits them without lawful excuse.

38. In the case of Daniel Muthee vs RepublicCriminal Appeal No. 218 of 2005 (UR)cited in the case of Republic vs Lawrence Mukaria & Another[2014] eKLR,Bosire, O’kubasu and Onyango Otieno JJA., while considering what constitutes malice aforethought observed as follows:

“When the appellant set upon the deceased and cut her with a panga several times and then proceeded to cut the young Allan in similar manner, he must have known that the act of cutting the deceased persons on the head with a sharp instrument would cause death or grievous harm to the victims. We are therefore satisfied that malice aforethought was established in terms of Section 206(b) of the Penal Code.”

39. The Accused raised the issue of self defence saying that he was defending himself, his family and even property. He stated that when the deceased attempted to harm him he ran away but when he saw the deceased was about to cut his child he returned to defend him.

40. It is not in dispute that PW3 and the accused had a grudge. The evidence on record shows that the accused had worked for PW3 and PW3 failed to pay him Kshs.6,000/=. In fact, PW3 confirmed that accused worked for them.

41. There is no evidence on record to show that the deceased and the accused had bad blood.

42. DW2 corroborated the evidence of the accused when she stated that the deceased came to their house quarreled the accused about harassing PW3. That when the deceased removed a knife DW2 ran away screaming leaving the deceased with the accused in the compound. PW3 also confirmed that the deceased went to the accused’s house however she did not know what took him there and whether he was armed or not. The evidence of PW1 and PW4 confirmed that it was the deceased who was armed with a knife on that fateful day. Both confirmed they visited the scene and found the body of the deceased. They claimed that he had a knife which was still in its sheath. This knife was never produced in court.

43. The evidence around the murder weapon is unclear. The Investigating Officer says the deceased armed himself to go teach the accused a lesson. The accused was found in his home doing his chores without any idea that an attack was forthcoming. His testimony is that the deceased removed a knife, a njora from his jacket and attacked him. PW3 claims to have seen the knife and it was not the one that was produced in court. What was produced in court was said to have been recovered from the house of the accused. No evidence is given as to how it left the scene to the house yet the evidence is that the accused got up from the ground where the struggle happened and took off to the police station. The knife alleged to have been recovered with blood stains was not subjected to forensics to confirm that it was indeed the murder weapon. The evidence that the same was found in the house of the accused is not believable in the circumstances of this case. This is made even so by the fact of its rejection by PW3 the wife to the deceased.

44. Be that as it may, there is no evidence on record to demonstrate that the accused had formed an intention to kill the deceased. It is in fact the deceased who went to the accused house armed with a knife. Evidence of PW4 that the deceased went to a drinking place where he swore that he would teach the accused a lesson was corroborated by that of the accused and DW2 who told the court that deceased came to their house and attempted to attack the accused. The accused therefore was under an obligation to defend himself and his family considering there was imminent danger of being attacked by the deceased.

45. It is evident also that the accused acted in anger and in the heat of the moment and inflicted injuries on the deceased that led to his death. The Court of Appeal case of Njeru vs Republic[2006] 2 KLR 46, the court in dealing with self defence held:-

1. Killing of a person can only be justified and excusable where the action of the accused which caused the death was in the course of averting a felonious attack and no greater force than was necessary was applied for that purpose. For the plea to succeed, it must be shown by the accused on a balance of probabilities that he was in immediate danger or peril arising from a sudden and serious attack by his victim. It must also be shown that reasonable force was used to avert or forestall the attack.

2. In this case, it was the duty of accused to show that at the time of the cutting deceased’s neck, he was in the course of averting a felonious attack and that no greater force than necessary was applied. Accused was bound to show that he was in immediate danger or peril arising from a sudden and serious attack by the deceased.

3. By virtue of Section 17 of the Penal Code, the principles of the English common law were applicable in determining criminal responsibility for the use of force in defence of the person or property. Under those principles, a person who attacked may defend himself but he may only do what was reasonably necessary. Everything would depend on the particular facts and circumstances.

46. The Court of Appeal in allowing an appeal and substituting the conviction of murder with manslaughter. In the case of Nzuki vs Republic (1993) KLR 171, observed: -

“There was a complete absence of motive and there was absolutely nothing on record from which it can be implied that the appellant had any one of the intentions outlined for malice aforethought when he unlawfully assaulted the deceased with the fatal consequences. Other than observing that the appellant viciously stabbed the deceased and in so doing intended to kill or cause him grevious harm, the trial court did not direct itself that the onus of proof of that necessary intent was throughout on the prosecution and the same had been discharged to its satisfaction in view of the circumstances under which the offence was committed. Having not done so, we are uncertain whether malice aforethought was proved against the appellant beyond any reasonable doubt. In the absence of proof of malice aforethought to the required standard, the appellant’s conviction for the offence of murder is unsustainable. His killing of the deceased amounted only to manslaughter.”

47. It is evident that the deceased was the aggressor. His wife had reported to him the alleged harassment by the accused. The investigating officer’s finding was that the deceased armed himself and left his house to go and teach the accused person a lesson for allegedly harassing his wife. He was the attacker. A fight broke out and he died as a result. The accused did not have an intention of killing the deceased and he acted in the moment. Malice aforethought was not established and the accused is guilty of the lesser offence of Manslaughter Contrary to Section 202 as read with Section 205 of the Penal Code.

48. I so find and convict him accordingly.

Dated, Signed and Delivered at Nakuru this 8th day of February, 2022.

Mumbua T. Matheka

Judge

In the presence of:

CA Edna

Ms. Mungai for the accused

Ms. Murunga for state

Accused present