[2018] KEHC 3654 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KERICHO

HCCR NO.42 OF 2014

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

VERSUS

GEOFFREY KIPKORIR SIELE..............1ST ACCUSED

COLLINS KIPNGETICH SIELE............2ND ACCUSED

ERICK KIMUTAI SIELE........................3RD ACCUSED

JUDGMENT

1. The accused, Geoffrey Kipkorir Siele, Collins Kipngetich Siele and Erick Kimutai Siele are brothers. They are charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code. The particulars of the offence are that on the 20th day of October 2014, at Kashen Village in Kipkelion West District within Kericho County, they jointly murdered Vincent Kipkoech.

2. The accused pleaded not guilty to the charge and the trial commenced before Ong’udi J, who took the evidence of 3 prosecution witnesses. Following the transfer of Honourable Ong’udi J to Nairobi, and upon compliance with section 200 of the Criminal Procedure Code, I proceeded with the suit from where it had reached.

3. The prosecution called 6 witnesses. PW1 was Geoffrey K. Chirchir, the area Chief of Boromuet Location. His evidence was that on the 19th of October 2014, at 10. 00 p.m., he had visited a relative, one David Boit, at Kashen. The relative lived a short distance from the Kashen centre. At around 10. 30 p.m., they heard screams from the lower part of the west side of Kashen centre. They left for the centre and saw people coming to the centre, and others running towards these people who were coming to the centre. They then saw a group of people coming towards them with a male youth, who was carrying a baggage (luggage) being pushed forward. When the youth reached where PW1 was standing, PW1 asked him what he was carrying. The youth told PW1 that he was Vincent and he had been found in a shamba with maize, and his mates had ran away. According to PW1, the luggage was about 10 kg of maize.

4. PW1 testified that the youth, who was bleeding from the upper part of the ear, denied being a thief. PW1 asked him to sit and when he did, PW1 realized he had serious injuries on the head. PW1 used light from security lights to see.

5. When he sought to know who the complainants were, three brothers, the accused in this case, identified themselves. PW1 stated that he saw the three arrive with weapons. Geoffrey, the 1st accused, had a panga and a stick. Erick, the 2nd accused, had a stick, while the 3rd accused, Collins, also had a stick. There was also a large crowd which was armed.

6. PW1 testified that he asked the three brothers and they said that Vincent had been found stealing. PW1 stated that he asked them to ensure that the deceased was treated, and the 1st accused, Geoffrey, called Joseph Too, a health worker who lives near Kashen. PW1 asked the ‘complainant’ to take charge of the matter, and then went home.

7. The following day, the 20th of October 2014, at 3. 00 p.m., he received information that the boy had succumbed to the injuries sustained. He identified the three accused persons as the three brothers involved in the incident.

8. In cross-examination by Mr. Orina, he testified that the night of the incident was dark. He had heard screams but was not able to tell what the screams were about. He had seen spotlights from far in the shamba. He thought that the shamba was Chepkwony’s shamba, which belonged to the family of the accused persons. He had seen a large crowd at the centre, which had torches, surging towards the screams. He had then stood to see what was happening. The crowd had about 15-20 people.

9. PW1 further testified in cross-examination that the boy had a bag with cobs of maize. The boy said it was his first time to be found in such a situation, that their mission was to steal, and that his accomplices had disappeared. PW1 testified further that there are such incidents in his area, and that some people guard their farms while armed in most cases. He was not surprised to find those in the crowd to be armed as it is normal to find those who keep vigil over their farms armed. He stated that the accused had said they found the deceased on their land.

10. PW2, Joseph Kipkemoi Too, was a resident of Borowet and the deceased’s guardian. He ran an Mpesa business and was also a community health worker. On 19th October 2014 at about 8. 00 p.m., he had closed his business and gone home where he had supper with his family. He had left one Chepkorir and Vincent Kipkoech, the deceased, reading and they had then gone to sleep. The deceased used to sleep near the (Kashen) centre in a house given to him by the MCA (the record does not indicate what the initials refer to.

11. PW2 had heard the deceased leave at 10. 00 p.m. After an hour, he got a call from the 1st accused, Geoffrey Siele, saying that the deceased was injured, and that he was among boys the accused had found in his shamba.

12. PW2 had taken a motor cycle and rushed to the scene. He had found a crowd and the deceased lying on the ground. He had an injury on the right ear. PW2 took the deceased to Dr. Rotich’s clinic but the doctor was not there, so he bandaged him, gave him pain killers, and they went home. At 5. 00 a.m., PW2 called the deceased’s brother who came and took the deceased to hospital in Londiani.

13. PW2 further testified that he had found Geoffrey, the 1st accused, at the centre. He had something in his hand but PW2 did not know what it was. The deceased told PW1 that when he left his place, he had met his friend called Kiplangat waiting for him. Kiplangat had asked him to go and guard him as he looked for wealth, and they had gone to Geoffrey’s shamba where he had waited for Kiplangat. While at the shamba, he had been attacked by the shamba owners. According to PW2, the deceased had said that it was Geoffrey and the others who had attacked him, but did not give PW2 any other name, nor did he say anything more. He had a cut on the ear and died the next day at around 12. 00 noon. PW2 identified the 1st accused, whom he said had a piece of wood and a torch, as well as the 3rd accused, whom he also saw at the centre, though he was not armed.

14. In cross-examination, PW2 stated that the deceased was attacked while at a place where maize was being stolen. The 1st accused had a torch, but it was night so he did not see well what the 1st accused was carrying, though he stated that he had a torch and stick. PW2 stated that he had a certificate in first aid. He had only used a bandage to arrest bleeding, then had given the deceased pain killers.

15. According to PW2, the deceased had serious injuries, but PW2 did not have money to enable him get a motor vehicle to take him to hospital, so he had taken him to his house where he stayed until 5. 00 a.m. The 1st accused had said that he was not able to take the deceased to hospital, though PW2 told them the critical condition of the boy.

16. PW3 was David Mibei Boit, a farmer from Kashen. On 20th October 2014, he was at home at 7. 00 a.m. when he was called by his sister, Evaline, the wife of Too (PW2). She asked him to go to Too’s home to assist Vincent Kipkoech who had been injured. PW3 waited for them on the way and they took Vincent to Londiani Hospital. He was admitted but passed away while undergoing treatment. PW3 then called his brothers and his sister, the mother of the deceased. He also reported the matter at the Kipkelion Police Station. Mrs. Too informed him that the deceased had been attacked by Geoffrey Siele and his two brothers, Eric and Collins, who are neighbours whom PW2 knew well. The deceased had injuries on the head and his ear was cut. The deceased was not talking when PW3 met him.

17. In cross-examination, PW3 stated that Evaline did not witness the incident, and he did not know how she got the information about the assault. He stated that the deceased told her as she lived with him. She had not told him about the theft of maize from Geoffrey’s shamba.

18. PW4 was No. 221974 Corporal Wilfred Boinet, then stationed at Taragon Police Post in Kipkelion sub-county. He had been in Kashen Police Post in Kipkelion Sub-county in 2014. On 19th October 2014, at about 10 p.m., he was at the Kashen Police Post. He heard shouts from the public and on investigating, found a crowd of people at Kashen centre. The police post is about 20 metres from where the crowd was. He went to the scene with his colleague, Jonah Cheruiyot, to find out what was happening and found that a young man had been forced to sit on the ground. When they inquired what was happening, the 1st accused informed them that the young man had been stealing with others from his farm, but others had run away. He said there were more than two but one ran towards the centre and Geoffrey raised the alarm. There were many buyers of maize and when they saw the young man running away, they attacked him. The deceased had been beaten and hit with an object like a rungu and had injuries, and there was a lot of blood. The young man could not talk.

19. PW4 and his colleague urged the 1st accused, Geoffrey, to get someone who could attend to the young man and Geoffrey called Mr. Too (PW3) to attend to him. Mr. Too attended to the young man and took him home. The following day, Mr. Too, who was a clinical officer, informed PW4 that the young man was not doing well. PW4 advised him to take the young man to hospital, and he took him to Londiani District Hospital. Later, one Denis Boit, who had accompanied the deceased and Mr. Too to hospital, called PW4 and informed him that the young man had died.

20. PW4 testified that he did not find out who had attacked the young man as the young man had been forced to sit down and there was a large crowd around him. The 1st accused had some maize which he said had been stolen. He identified two half sacks of maize which he stated PW1 had said had been stolen from his shamba.

21. In cross-examination, he stated that he heard the alarm from members of the public at around 10 p.m. He had seen a large crowd of people, about 20. Though there are lights at Kashen centre, it was dark at the place where the crowd was, though not so dark as there was a full moon. PW4’s testimony was that he could not tell whether it was the crowd that beat the deceased up as he found him sitting down and the 1st accused saying that he had stolen his maize. PW4 had heard shouts of “thief! thief!” and “kill! Kill!” from many people.

22. In re-examination, PW4 stated that he had told the 1st accused to take the deceased to hospital as the police could not take an injured person to their camp.

23. Dr. Georgina Lasoi was the 5th prosecution witness. She was a Medical Officer, Kericho District Hospital. She presented the post mortem on the deceased. The post mortem had been conducted by Dr. Nyakundi on 23rd October 2014 at Kericho District Hospital. Dr. Nyakundi was not available to present the post mortem report. There being no objection, the witness produced the report under section 33 and 77 of the Evidence Act.

24. According to Dr. Lasoi, the report indicated that the deceased was Vincent Kipkoech Koru, and the post mortem was done on his body on 23rd October 2014 at 12. 55 at the Kericho District Hospital. The report indicated that the deceased was an Africa male around 18 years of age. He had a depression on the temporal region of the head, on the side of the head above the ear, with a cut wound on the left ear lobe measuring 3 x 2 cm. The neck and upper and lower limbs were normal. Upon internal examination of the body, he was found to have epidural and subdural haemorrhage. Both sides of the dura had a collection of blood that was pushing the brain matter. Dr. Nyakundi, who performed the post mortem, formed the opinion that the cause of death was the massive epidural and subdural haemorrhage that was consistent with the depression in the temporal region. PW5 produced the report as prosecution exhibit 2.

25. The last prosecution witness, PW6, the investigating officer, was No. 83895 Inspector Musili Kelo, then attached to Londiani DCI. He was previously covering Londiani and Kipkelion sub – counties.

26. On 20th October 2014, at about 5. 00 p.m., he was in the officer when he received a call from the then OCPD Kipkelion Mr. Anampiu. Mr. Anampiu informed him that a case of murder had been reported at Kipkelion Police Station. PW6 went with Cpl. Hussein and PC Mati Kipkelion Police Station. He found a report at the station that one Vincent Kipkoech Koru had been assaulted the previous night and had died at Londiani Sub-district Hospital while undergoing treatment. Prior to that report, one Geoffrey Kipkorir Siele, the 1st accused, had reported to the station that they had arrested the deceased in his farm and that he had been subjected to mob violence. PW6 had started investigations and made arrangements for the body to be transferred to Kericho District Hospital for a post mortem.

27. PW6 further testified that on 21st October 2014, he had gone to Kashen with Cpl Musengi. They had found AP Cpl Boinet (PW4), who was stationed at Kashen AP Camp. They had inquired from him and he had given them two half sacks of maize in their cobs and informed them that the sacks had been brought by the accused who had recovered them from the 1st accused’s farm where the deceased had been arrested. AP Cpl Boinet had called the 1st accused, who had gone to the station and PW6 had interviewed him. The 1st accused had identified the two sacks of maize and confirmed that they were from his farm. He had led them to his farm, which is about 800 metres from Kasheen centre. At the farm, PW6 established that there was maize that was ready for harvesting. He had also noted, on the northern part of the farm, a foot path from Kashen to Tinga Tela which bordered the 1st accused’s farm on the northern part, but is not on the accused’s farm.

28. PW6 testified that the 1st accused informed him that on 19th October 2014, at around 9. 00 p.m. the three accused persons were guarding maize in his farm as there were many cases of maize being stolen. The 1st accused had a spotlight and a club, the 2nd accused a panga while the 3rd accused had a spotlight and a club. While they were guarding the farm, they had seen two people with spotlights walking along the foot path from Kashen to Tinga Teli. On reaching the farm of the 1st accused, the two people had entered the farm and started harvesting maize.

29. According to PW6, the 1st accused told him that he had raised the alarm and the two people managed to escape, but they managed to arrest the deceased and they recovered the two sacks of maize from the farm. They had taken the deceased to Kashen centre.

30. PW6 had interviewed a health practitioner who had a health centre in Kashen. The health practitioner informed him that he spoke to the deceased before he attended to him and the deceased informed him that he had been assaulted by the three accused persons. The deceased had injuries on the head, and one of his ears had been cut.

31. PW6 had been informed by AP Corporal Boinet that he had ordered the three accused persons to take the deceased to the clinic, where he was attended to. Cpl Musembi had attended the post mortem of the deceased at the Kericho District Hospital on 23rd October 2014.

32. PW6 had later summoned the 2nd and 3rd accused and interviewed them. They had indicated that the deceased had been subjected to mob injustice as the 1st accused had indicated. PW6 noted that the accused persons had not indicated that the deceased had offered any form of resistance when they arrested him. That the accused were 3 and the deceased could not have offered any resistance. PW6 produced the two and a half sacks of maize as exhibit – 1(a) and (b).

33. According to PW6, the distance from the centre to the 1st accused’s farm is 800 metres, and it is difficult for people at the centre to hear if one shouts from the farm, and the people could not have moved from the centre to the farm.

34. In cross-examination PW6 stated that the accused persons got the maize from the farm of the 1st accused, and that the deceased and the other person who escaped harvested the maize. The person who escaped ran away, but the deceased did not. The 1st accused had reported that they had arrested the deceased. PW6 had a report from the occurrence book of Kipkelion Police Station, OB No. 7/20. 10. 2014 that the 1st accused made a report that on that day, at around 10. 00 p.m., he and his brothers were at his farm.

35. From his report, the deceased was running, and it is possible that he was running towards the centre. He also conceded that the accused may have been shouting as they chased the deceased. It was his testimony that the report does not say where they caught the accused, but from the investigation, they caught him at the farm. The 1st accused had taken PW6 to the farm where he had been able to trace the foot prints. It was his testimony that from the foot prints, the accused had caught the deceased at the farm as there was a disturbance where they caught him. It was also his evidence that the foot prints were in the farm, not on the foot path.

36. PW6 further stated that he was not able to get the weapons that the accused had used as they had hidden them. Further, that the mob came in at the centre, and the time was around 10. 00 p.m. The centre has shops and hotels, and sometimes they operate late as there is no limitation on hotel closing hours. It was also his testimony that after the deceased had been attended to by the health practitioner, he was able to say that he had been attacked by the accused.

37. On re-examination, his evidence was that no weapons were recovered. The health practitioner who attended the deceased had informed him what weapons the accused had, and the 1st accused also confirmed to PW6 that he and his co-accused had those weapons. The 1st accused had confirmed that he had a club, the 2nd accused a panga and the 3rd accused a club. It was his testimony that the deceased was assaulted by the accused persons, who brought in the issue of the mob as a cover up. Since the accused live in the place where the assault occurred, they could have identified the people in the mob.

38. The prosecution then closed its case, and the three accused persons were placed on their defence. They initially elected to give unsworn statements and call 3 witnesses. They later elected to give sworn statements and call two witnesses.

39. In his statement in his defence, the 1st accused, Geoffrey Kipkorir Siele, stated that he was a resident of Kashen village in Kipkelion, and a farmer and businessman. On the 19th of October 2014, at 10. 00 p.m., he was with his brothers at their shamba at Kashen, which is about 300 metres from the shops at Kashen shopping centre. They were guarding their maize as there was rampant theft of maize.

40. While they were guarding the maize, two people entered the land and started stealing maize. Since it was dark, he and his brothers could not tell how many people there were. They could just hear people stealing maize. After the 1st accused and his brothers screamed, the people left, and they could hear them running from the farm. Some were running upwards and others downwards. PW1 and his brothers were screaming to try and scare the people who were stealing maize, but also for people to come and assist them arrest the persons who were stealing maize. They had continued screaming then they saw people come running with torches to their farm from the shopping centre. They continued to search for the thieves and shortly they could hear their neighbours shouting that the thieves had left. They then heard other neighbours at the shopping centre shouting that they had arrested a thief and that the thief had maize with him.

41. PW1 stated that one person was arrested, and when they heard that a person had been arrested, they went in the direction of the shopping centre. When they arrived, they found that people had beaten the suspected thief, the deceased, and the Chief was questioning him. The deceased had, according to the 1st accused, admitted to having picked the maize from the farm, and had mentioned the name of his accomplice.

42. The Chief also inquired about the owner of the farm and the 1st accused identified himself as the owner. PW1 had recognised the the suspect, the deceased, when he saw him, and he called his guardian, Joseph Too (PW2), who arrived and identified the suspect. PW2 had asked the suspect why he had stolen. PW2 operated a clinic at the centre and he took the deceased with him. He treated him as he was injured and took him to his house. The 1st accused and his brothers had gone home after they parted with police officers who were in the company of the Chief.

43. The following morning, the 1st accused had gone to Kashen Police Post. He had passed by the farm where he had found maize in a sack and took it to the police post, then he had gone to the Kipkelion Police Post to make a report and record a statement. He had then gone home, and on arrival, he was informed by PW2 that the deceased had passed away at Londiani Hospital.

44. The 1st accused had stayed at home for about 2 weeks, then Corporal Boinet had called and informed him that he was needed by CID officers from Londiani to record a statement. He had gone to Kashen shopping centre and after interrogation, the police had taken his phone number and told him that should he be needed, they would call him. He was called the following week and informed that he and his two brothers were needed at Londiani. The two had gone to Londiani and after interrogation, they had returned home. They were again summoned on 2nd December 2014, and when they reported at Londiani, they were arrested and charged with the offence they now face.

45. It was the 1st accused’s testimony that when they shouted at the farm, the people who were stealing maize scattered in different directions. When he and his brothers reached the shopping centre, they found that a person had been arrested, but they did not see him being beaten up, though he had injuries on his body. He had taken 5 minutes to come from the farm to the shopping centre, a delay that was caused by the fact that he was in the middle of maize which was tall, and he had to find his way out as he also searched for accomplices.

46. In cross-examination, he stated that he had a torch and a wooden stick. It was dark, so he could not see what his brothers, the 2nd and 3rd accused, were armed with. He had been the first to go to the farm, then his brothers had joined him at 10. 00 p.m. He had farmed the maize and had asked his brothers to help him guard the maize. They were not at the same place on the farm but were not far apart. He was the first to scream when they heard people on the farm. He did not see the people but could hear maize being harvested.

47. It was his testimony that the farm is 300 metres away from the shopping centre, and that people were going about their business at the centre. They were however suspicious as theft of maize was rampant. He could not recall the people he found at the shopping centre, but he found the deceased at the shopping centre. He denied that they had found the deceased at his farm and had escorted him to the shopping centre. He confirmed that he was armed with a stick and a torch.

48. In re-examination, he stated that the people who were plucking maize ran in different directions, and he could hear the sound of dry maize as they ran. He had shouted that there was a thief stealing their maize and asked for help in arresting them. It was his evidence that the norm at the shopping centre is that people came out when there are screams. His intention was for the thief to be arrested and dealt with in accordance with the law.

49. The 2nd accused, Collins Kipngetich Siele, also stated that he was a farmer and resident of Kashen. On 18th of October 2014, there was rampant maize theft within their area. At 10. 00 p.m., they had gone to guard their maize, which people were in the process of stealing. He and his brothers had entered the farm at 10. 00 p.m. They were apart but not too far from each other. He was armed with a torch and wooden stick.

50. They had gone to the 1st accused’s aid when he screamed “thieves! thieves!.” He heard the thieves enter the maize farm and start stealing maize. The 2nd accused had joined the 1st accused in screaming, and the thieves had ran away in different directions. The accused had started a search inside the farm but found nobody. They heard noises from the shopping centre saying ‘here is the thief!’ That the people at the centre had not seen the accused enter the farm but they heard their noise. The accused had heard noise from the centre and had gone there to find a person who had been arrested. The 2nd accused stated that he recognised the deceased, who had been beaten. He had recognised him by flashing his torch at him

51. It was his testimony that the people at the centre knew the deceased was the thief as they heard the screams of the accused and the deceased was running to where the people were, and he had the stolen maize. Since the chief was around, the accused had escorted the suspect to the shopping centre. They had interrogated the suspect, who had accepted that he was at the maize farm together with his friend.

52. The 2nd accused echoed the 1st accused’s evidence that the Chief had instructed the 1st accused to take the deceased to hospital, and they had taken the deceased to the deceased’s guardian’s clinic where he had been treated and then taken to his guardian’s house. He also echoed his brother’s testimony with respect to the events of the following weeks, and their subsequent arrest.

53. In cross-examination, he confirmed that he was armed with a torch which he had carried, not to attack the thief but to defend himself. He stated that the Chief was not at the scene when the 2nd accused reached the scene and found that the deceased had been beaten. He denied that he and his co-accused had arrested anyone, but maintained that one person had been arrested at the centre.

54. The 3rd accused, Eric Kimutai Siele, also gave sworn evidence. He stated that on the 18th of October 2014 he and his brothers were guarding maize at the 1st accused’s farm. He was armed with a torch and a wooden stick. He too testified that they heard people inside the farm stealing maize. They had screamed and the people had fled, one fleeing upwards and the other to the shopping centre. That shortly, people had come from the shopping centre screaming that they had caught the thief.

55. The accused had gone to the shopping centre and found the suspect, who had maize, and had been beaten. They had recgonised him and called his guardian, who had taken him to his house. The 3rd accused also testified that they had met the Chief at the shopping centre, and he had interrogated the suspect. The 3rd accused also repeated the testimony of his co-accused about the events of the following days, including the death of the deceased and their arrest and subsequent charge in connection with the death of the deceased. He maintained that there were many people at the scene on the material night, and that he had not recognised any one. The 3rd accused confirmed in cross-examination that he was armed with a wooden stick on the material night.

56. The accused called one Samuel Cheruiyot (DW4) in their defence. His evidence was that on 18th October 2014, he was returning from a journey. He had passed Kashen centre at at 10. 00 p.m. while heading home. He had heard noises at the centre that thieves were stealing maize. He had gone back to the centre to inquire what was happening. He had met many people holding somebody who had been beaten up. The person who had been beaten up had maize, a 50kg bag that was not full. It was his testimony that the person had been beaten and injured, and the Chief was interrogating him. The accused had come in as the suspect was being interrogated by the Chief, and the Chief ordered that he be taken to the AP Camp, together with the owners of the maize. He had gone home after the people left for the Chief’s camp.

57. His evidence in cross-examination was that he had known the accused for 20 years. Geoffrey had arrived at the scene at Kashen centre first, followed by Eric and Collins, who had torches and pangas. G

58. The 5th defence witness was Richard Cheruiyot, a resident of Kasheen who operated a kiosk at Kasheen centre. On the 18th of October 2014, at 10. 00 p.m., he had heard loud screams of ‘thieves! thieves!. He had got out of his kiosk and seen torches from a far. He had locked his kiosk and ran to where the screams were coming from, and he was followed by many people. He had found, on arrival at the scene, that a young boy had been arrested by people and had been beaten up. The people at the scene were businessmen who were using donkeys to ferry maize.

59. The chief had arrived shortly thereafter and had interrogated the suspect and urged the people not to beat him. The accused had arrived shortly thereafter, carrying torches. They had said when they arrived that the maize that had been stolen was theirs. According to DW5, the deceased and the accused had been escorted to Kasheen Police Post near the centre. He had then left for his shop. He had heard people say that the deceased had been arrested with maize in a 50 kg bag after he left the farm.

60. In cross-examination, he stated that he had found that the suspect had been arrested, but did not see him being arrested. He was present when the accused persons arrived, carrying torches and wooden sticks. He had seen the 1st accused carrying a wooden stick.

61. In submissions on behalf of the state, Ms. Keli argued that the prosecution had proved the case against the accused beyond reasonable doubt the exhibits and the witness testimony before the court. It had placed the three accused persons at the scene of crime. It had shown that the three were armed. The 1st accused had confirmed that he had a wooden stick, as did the 2nd and 3rd accused. These wooden sticks had been used to assault the the deceased who was not armed at the time of the attack.

62. Ms. Keli submitted that the fact that the three accused persons went to the farm while proves that they had the intention to cause grievous harm or death to any person that they came across. The state had established both actus reus and mens rea, and she urged the court to find the accused guilty of the offence of murder as charged.

63. In response, Ms. Chelimo submitted that the evidence of PW1,2 and 6 who had testified that the deceased was able to speak had been contradicted by that of PW4, the officer from the Kashen camp who had been the first to meet the crowd at the scene where the deceased was.was. He had testified that he had found the deceased on the ground, and that he was unable to talk, contrary to the testimony of the other witnesses.

64. With regard to the cause of death of the deceased, Ms. Chelimo submitted that the post mortem report had indicated that the deceased died from a massive epidural and sub-dural haemorrahage consistent with the depression to the temporal region. It was her submission that the doctor had confirmed during cross-examination that the injury was consistent with trauma caused by a heavy blunt object. Her submission was that the accused persons only had sticks, a panga and torches in their hands, all of which could not have caused such trauma to the head of the deceased as resulted in his death.

65. As for the evidence of the investigating officer, it was her submission that he had admitted that he had not brought any weapon alleged to have been used by the accused in court, and that he had only relied on the information given by the deceased and alleged confessions by the accused which he had not produced in court.

66. Counsel submitted that in their sworn defences, the accused had stated that they had been guarding their maize at night when they heard people stealing their maize. They had chased the thieves and after some time they heard cries form the centre that the thief had been caught. They had found that the deceased had been caught and was already injured. They had called two witnesses who were residents of the area who had testified that it was the crowd that attacked the deceased.

67. Ms. Chelimo submitted that the accused did not deny that they were in the maize plantation. They did, however, deny killing the deceased who was attacked by the crowd in mob injustice. She submitted further that none of the witnesses saw the deceased being beaten by the accused persons; that it is doubtful that the deceased was able to talk; that the weapons allegedly used in the assault against the deceased were never produced in court.

68. While the cause of death of the deceased was not in dispute, Ms. Chelimo submitted that all the witnesses gave evidence that they did not see the assault on the deceased, but only heard or were told of the assault. She urged the court to find that the prosecution had failed to establish a case of murder against the accused beyond reasonable doubt, and to grant the accused the benefit of the doubt and acquit them.

69. The accused in this matter have been charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code. Section 203 provides that:

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

70. Section 206 defines “Malice aforethought” in the following terms:

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.

71. The deceased in this matter is a young boy, of about 15 years of age. He died as a result of a blunt trauma to the head, inflicted with a blunt object, according to the post mortem report produced as exhibit 2. There is therefore no dispute about his death, or the cause of his death.

72. The injury that resulted in his death was inflicted on the night of 20th October 2014. He was alleged to have been caught stealing maize from the farm of the 1st accused. The prosecution alleges that it is the 1st accused and his two brothers, the 2nd and 3rd accused, who caused the death of the deceased by beating him up when they caught him in the 1st accused’s farm. The accused’s defence is that the deceased was beaten up by a mob that responded to their cries when they found the deceased and others stealing maize from the farm.

73. The burden cast on the prosecution in a criminal trial is to prove the guilt of the accused beyond reasonable doubt. It can place before the court direct or circumstantial evidence to establish the culpability of the accused beyond reasonable doubt. Where the evidence relied on is circumstantial evidence, such evidence must point irresistibly to the accused as the perpetrator of the offence charged. In R vs Kipkering arap Koske & Another 16 EACA 135 the court stated that:

“In order to justify the inference of guilt, the inculpatory fact must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt.”

74. In Sawe vs Republic [2003] KLR 364 at page 375 the Court of Appeal stated as follows:

“There must be no other co-existing circumstances weakening the chain of circumstances relied on. The burden of proving facts that justify the drawing of this inference from the facts to the exclusion of any other reasonable hypothesis of innocence is on the prosecution, and always remains with the prosecution. It is a burden which never shifts to the party accused.”

75. The deceased in this case died as a result of injuries that were inflicted on him for allegedly stealing maize. The evidence of PW1, one of the first people on the scene, was that at around 10. 30 p.m., while visiting a fried at Kashen, they had heard screams from the lower part of the west side of Kashen centre. They had left for the centre and seen people coming to the centre, and others running towards these people who were coming to the centre. According to PW1, they had seen a group of people coming towards them with a male youth. The male youth was carrying what turned out to be a sack of maize. He informed PW1, upon questioning, that he and his mates had been found in a shamba with maize. His mates had run away, and he was caught. PW1 testified that he had asked the youth to sit down, and had then realized that he had serious injuries on the head.

76. I note here that PW1 spoke of a group of people, and that the accused identified themselves when PW1 asked who the complainants with respect to the theft of the maize were.

77. From the evidence, there was a large group of people, whom PW1 said were armed, who were with the deceased when he reached the centre of Kashen and was questioned by the Chief.

78. The evidence of the other prosecution witness related to what they had been informed with respect to the incident. PW4, Corporal Wilfred Boinet, had arrived at the scene with his colleague, Corporal Cheruiyot, when they heard shouting at the centre. They had arrived to find the deceased, who was injured, sitting down, and the crowd around him. They had inquired about the incident and the 1st accused had informed them that the deceased had been beaten by maize traders after he had been caught stealing maize from his farm. The police had then left, placing the responsibility of seeing to the treatment of the deceased, ironically and sadly, in the hands of the person he had been stealing from. There was therefore no direct evidence with respect to the assault on the deceased.

79. Does the circumstantial evidence point irresistibly to the accused as the perpetrators of the offence, and admit of no other hypothesis that that of guilt of the accused? The accused admit that they were at the scene on the material night. They were guarding the 1st accused’s maize from being stolen. The 1st accused heard the thieves, and screamed, and was joined by his brothers. They deny that they assaulted the deceased, and maintain that he was beaten by the mob at the trading centre. Their witnesses back their story. Both Samuel Cheruiyot (DW4) and Richard Cheruiyot (DW5) testified that they had gone to the scene when they heard screaming, and had found the deceased sitting down and being interrogated by the Chief. It was their testimony that the three accused persons had come thereafter.

80. It may well be that the accused did beat up the deceased after they found him stealing maize from the 1st accused’s farm. However, it is also possible, as the accused and their witnesses maintain, that the deceased was beaten up by traders at the Kashe centre after the accused screamed that there was a thief at the 1st accused’s farm. That possibility, in my view, implies that the prosecution has failed to prove its case against the accused beyond reasonable doubt. While the blood of the deceased, a young boy deprived of his life because of a sack of maize cries for justice, the evidence before me does not point at the accused brothers, beyond reasonable doubt, as the persons who took his life. If they are, and have hidden their wrongdoing behind the crowd they allege beat up the deceased, they will have to deal with their consciences and their maker.

81. I am not satisfied, on the evidence before me, that the prosecution has proved its case against the three accused persons in this matter beyond reasonable doubt. I therefore acquit them in accordance with section 215 of the Criminal Procedure Code.

Dated Delivered and Signed at Kericho this 3rd day of October 2018

MUMBI NGUGI

JUDGE