[2022] KEHC 1907 (KLR)

REPUBLIF OE KENYA

IN THE HIGH COURT OF KENYA

AT BUNGOMA

HCR NO. 39 OF 2019

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

VERSEUS

ISAAC KIPTOO............ACCUSED

J U D G M E N T

The accused ISAAC KIPTOO is charged with 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 8th day of November, 2019 at Toywadet sub-location Kapkateny location in Cheptais sub-county within Bungoma County murdered MOSES KIBET CHEPKILIS alias TOSA.

The prosecution case is that on 8. 11. 2019 PW5 Eric Kibet Chepkilis the brother of the deceased Moses Kibet Chepkilis alias Tosa was at his home at midnight when he received a telephone call from his uncle that his brother the deceased had been killed. He woke up hisJafred Kimaiyo (PW4). They went to the scene where they found deceased lying down near a road. He observed him and saw he had injuries on the ear, mouth, abdomen, head and chest. The chief who was present called the OCS who took the deceased to hospital. He later received information that accused was the one involved in the murder. They looked or him and took him to police. They questioned accused who stated that they had fought over a cigarette.

On being cross-examined by Makokha for accused, he stated that he did not witness when deceased and accused were fighting.

PW4 Jafred Kimaiyo Chepkilisthe father of the deceased was in his house when he was informed that his son the deceased had been killed at the farm of Samson Misitia. He went there and found deceased lying down with stab wounds on the whole body. They called the OCS who took deceased to Kapsiro Health centre and next day he was transferred to Bungoma hospital where he died 3 days later. He went home and found 15 people who told him they wanted to negotiate as accused had killed his son. They made an agreement. They undertook to foot the funeral expenses.

In cross examination by Mr. Makokha he stated that he did not witness the attack. He stated that his son the deceased used to drink and liked fighting.

PW2 Benson Kwalia Misitunithe village elder was in his house when PW1 Elvis Kimutai came and informed him deceased had been killed. He was with Priscilla (PW7) He accompanied them to the scene where he found deceased lying down with injury on right ear and was bleeding. He called the assistant chief who informed the OCS who came and took the deceased to Kapsiro Health Centre. He confirmed in cross examination that he did not witness the deceased being assaulted. He stated that he deceased was found on a road that passes through accused’s farm.

PW3 Wycliffe Kirui the chief of Kilwandeli location received information of the assault he went to the scene. He found the deceased and confirmed he had injuries. He called the OCS who came and deceased was taken to hospital. He then received information that accused was a suspect. He looked for accused and arrested him. He told them he had stabbed deceased with a knife and threw it in a pit latrine. He handed him over to police.

PW6 Chief Inspector Robert Githinji the OCS of Kapsiro police station received a telephone call from a village elder Benson (PW 2 ) who told him of the incident of assault. He visited the scene. He saw the deceased lying down with injuries on the ear. He took him to Kapsiro Health centre and assigned Copl Maroa to conduct further investigations.

PW9 No. 55541 Copl Peter Maroa was allocated the file for investigation. On 9. 11. 2019 he visited the deceased who was being treated at Kapsiro health centre where he found him in a coma. The deceased was referred to Bungoma Hospital. He received the accused from the chief and interrogated him. Accused told him he had used a panga and had thrown it at his pit latrine. They did not find it. He again told them he had thrown it in Nimdembe primary school latrines. On arriving there he changed his mind and refused to speak. On 13. 11. 2019 he received information that deceased had died.

While responding to cross-examination by Mr. Makokha the witness who was the investigating officer stated that there was no eye-witness to the assault. He stated that the incident occurred at night at a place where people were drinking changaa which was being sold by the mother of the accused who is still at large.

The accused’s defence in his sworn statement is that the deceased was his cousin. On 8. 11. 2019 in the evening he was at home alone. On 9. 11. 2019 he went to Kaptetien at 7 a.m. where he was arrested by the assistant-chief. He was then taken to Kapsiro police station. On 11. 11. 2019 he was taken to Sirisia Law Courts where he learnt of the charge.

The accused is charged with the offence of murder contrary to Section 203 of the Penal Code which provides.

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

The ingredients of the charge of murder which the prosecution must prove are:

a. The fact and the cause of death

b. The unlawful act or omission that caused the death.

c. That it is the accused who committed the unlawful act or inflicted the injuries that led to the death of the deceased.

d. That the accused had the necessary malice aforethought or mens rea.

PW8 Dr. Brian Inima Kenyani who performed the post mortem found the deceased had bruises on right chest, both eyelids cuts wound on the neck measuring 8 cm long. He found there was haemotoma on the brain matter. The left ear was removed. From the examination he formed opinion that cause of death was intracranial haemorage due to blunt injury to the head.

The prosecution can prove a charge of murder by adducing direct evidence to show that it is accused who committed the offence. Direct evidence is the evidence of eye witness, who will testify as to what they saw, heard or observed. The prosecution can also prove the charge by adducing circumstantial evidence which is a set of proved facts from which the court will draw an inference that it is the accused and no other who committed the offence.

In this case the prosecution called PW1 Elvis Kimutai who testified that he did not know who killed the deceased, PW2 Benson Kwalia who stated he did not witness the assault, PW3 Kimtai who stated that it is accused who had assaulted deceased but he was not present himself. PW4 Jafred Kimaiyo the father of the deceased who testified that when he arrived at the scene and found deceased injured. PW5 Eric Kibet Chepkilis the brother of the deceased went to the scene and found deceased injured. He received information that it is accused who was the suspect and caused him to be arrested. PW7 Priscilla Tengecho testified she did not know how deceased died. None of these witnesses testified as to how the deceased sustained injuries to connect the accused with the offence.

If the prosecution did not adduce direct evidence in court did the prosecution prove inculpatory facts from which the court can make an inference of guilt? The prosecution tendered evidence of the doctor who confirmed that the deceased had injuries; prosecution called PW9 corporal Peter Maroa who testified that the accused during interrogation told them he had thrown the murder weapon in a pit latrine at his home. They searched but did not find it; he then changed it was at a school, then he changed his mind and stopped speaking to them. His investigation showed that the incident occurred at a home of a changaa brewer but he did not record her statement.

Where the prosecution seeks to rely on circumstantial evidence to prove a charge of murder the evidence to be tendered and the standard of prove was stated in Kipkering arap Koskey & R 1949 16. EA to be “ in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt.”

The court then added:-

“The burden of proving facts which justify the drawing of this inference from the facts to the exclusion of any 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.”

No such facts or circumstances have been tendered in this case by the prosecution.

Upon evaluating the whole evidence, I find that this is a case which was either poorly investigated by the investigating officer or inadequately evaluated by the ODPP or witnesses compromised by an agreement between the family of accused and that of deceased as alluded to by PW4 Jafred Kimaiyo Chepkilis the father of the deceased in his evidence.

For the above reasons I find that the prosecution has not proved the charge of murder contrary to Section 203 as read with Section 204 of the Penal code against accused. I find the accused ISAAC KIPTOO not guilty of the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code and acquit him under Section 215 CPC. I order the accused ISAAC KIPTOO. Be set at liberty unless otherwise lawfully detained.

DATED, SIGNED AND DELIVERED AT BUNGOMA THIS 8TH OF FEBRUARY, 2022

S.N RIECHI

JUDGE