[2014] KEHC 2000 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT ELDORET

CRIMINAL CASE NO. 7 OF 2007

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

VERSUS

J KY ALIAS C..............................................ACCUSED

JUDGMENT

The accused J KY Alias C was charged with murder contrary to Section 203 as read with Section 204 of the Penal Code. It is alleged that on the 19th of December, 2006 in Marakwet District within the Rift Valley Province murdered S KY.

EVIDENCE

In total, the prosecution called six witnesses. The evidence of PW1 and 2 was heard by Mwilu, J (as she then was). Hon. Justice Karanja proceeded with PW3, 4 and 5 and I heard that of PW6 as well as the defence case.

I summarize the evidence as hereunder;

PW1,14 year old V K told the court that the accused became known to him after the incident but the deceased was earlier known to him. He testified that on the material date, he was out herding cattle together with the deceased and another young man P when the accused came and scared them and they began to run away. He stated that the deceased ran in a different direction. That is when the accused shot him with an arrow and he fell to the ground. PW1 was watching from a distance of 200 metres. He told the court that he and P went to where the deceased lay and found that he had removed the stick from the stab wound but the arrow head was still lodged in his body and he was dead. They began to scream. A man named D heard their screams and rushed to the scene. They went to call the police. When the police arrived at the scene, they took the two arrows which had missed the deceased and the one which had shot the deceased. The three arrows were marked P.MFI.1. PW1 maintained that it was the accused who shot the deceased and he had seen him do it.

On cross-examination, the witness told the court that he recorded his statement with the police a day after the deceased died. He stated that he was with the deceased all day until he was shot at around 3. 00 p.m. He further told the court that his friend P had joined them at about 11. 00 a.m. and that he had told the police that the arrows used by the accused were poisonous because the blood oozing out of the deceased's body was black. PW1 stated that they did not have any weapons with them.

He stated that he was about 100 meters away when the deceased was shot but later said that he did not actually see the shooting but only saw the deceased running after he had been shot. He told the court that he had not been coached and that the deceased was not related to him.

In re-examination, PW1 said that he had not seen “Mzee” (deceased) being shot but he was scared and that is why he lied in his testimony.

PW2, P K, the deceased's son, told the court that the accused person was his uncle. He stated that on the material date, he was herding his deceased father's cows together with PW1 when the accused came to the scene and chased them away. He too stated that he saw “Mzee” being shot after which the accused ran away. He indicated that he and PW1 returned from where they had gone to hide about 20 minutes after the incident and found that the deceased was dead with the arrow head stuck on his back. He stated that when he screamed, his brother D went to the scene and called the police. He testified that he did not know whether the accused and the deceased had had a quarrel but he saw the shooting as he was about 200 meters away.

On cross-examination, the witness told the court that he went to assist his father with the herding at around 11 a.m. He stated that he was surprised that PW1 told the court that he did not see the shooting because they had been together during the incident. He told the court that his deceased father lived at his maternal uncle's home for reasons that were not known to him and this is where he was killed. He added that the accused lived in a different village - but cultivated their shamba at Arror. He stated that they did not have any weapons with them - only the sticks they used for herding cows. He further averred that the poisonous arrows that belonged to his father were kept in the house and if he had acquired any new ones that morning he would have seen them at the scene. He stated that it is the accused person who had arrows.

PW3, Sammy Kemboi Kittony, the Marakwet West Assistant Chief testified that on 19th December, 2006, he was summoned to the local police station where he was informed that the deceased had been killed. He accompanied the police to the scene where two arrows were found and another one that had no head was collected near the body of the deceased. He identified them in court. He then stated that it is the accused who killed the deceased. Thereafter the body was taken to the mortuary.

In cross-examination, PW3 told the court that he could not tell where the head of one of the arrows was. He stated that the deceased and the accused were relatives. He said that the deceased had not lived in that area for sometime. He had relocated (exiled) after allegedly killing the father of the accused. He had returned to the area after allegedly killing another person elsewhere. He however only occasionally visited the area. He said he suspected the deceased was killed with a poisoned arrow.

In re-examination, PW3 stated that the deceased was killed with a poisoned arrow.

PW4, Pius Kimutai Chemisto, the Assistant Chief of Keiyo North District testified that on the 27th December, 2006 a lady called S reported to him that her husband was at home and wanted to make a report but could not go to where he was because he had an injured leg. He proceeded to S home where he found the accused. The accused then reported to him that he had killed his uncle and was afraid to go to the police station. He requested him to escort him to the police station which he did. He took him to Kabulo Police Station.

In cross-examination, PW4 stated that he did not tell the police that the accused had told him that he had killed the deceased.

PW5,No. 40403 Police Constable Fredrick Mwele attached to Marakwet Police station (formerly of Arror Police Post) testified that on the material date at about 1. 30 p.m a report was made by one D K that his father had been shot and killed using an arrow. The report was booked and the officers visited the scene which was about 3 kilometers away. There, they found the deceased's body which had injuries and was bleeding from the nose and mouth. The information was relayed to the OCS who was requested to provide a vehicle to transport the deceased's body to the mortuary. PW5 told the court that PK and VK had witnessed the incident. He stated that the two had stated that a family member, J C (whom he identified as the accused at the dock) had carried out the killing and had gone into hiding. He indicated to the court that he and his colleagues found three arrows at the scene with one having no head. The one without a head was next to the deceased's body and he identified it in court. He also identified two other arrows that were found a few metres from the body. He produced all the three arrows as exhibits.

PW5 further stated that the accused was brought to the police station by officers from Opulua Chief's camp having been suspected of having killed the deceased and was arrested accordingly.

In cross-examination, PW5 stated that he did not investigate the case and it was not him who recorded the statements of V and P who stated they witnessed the murder. He also added that though he spoke of a poisoned arrow in his statement, he had not witnessed the murder and was only told that the deceased had been shot with a poisoned arrow. He stated that V and P were not suspects.

PW6, D C, the deceased's son testified that on 19th December, 2006, at around 1:30 p.m, he found his father S K had been killed near the road and went to report to the police. The police walked to the scene of the incident but found no one. He indicated that before his father met his death, he was herding cattle.

PW6 told the court he had been burning charcoal with the accused person and they parted ways at around 11. 00 a.m. when the accused said that he had gone to fetch water from the river. The accused took too long to return from the river and this is when he decided to go and check on him. He found he had left the jerrican at the river. The accused eventually returned at around 12. 30 p.m carrying a bow and arrow and told him that he had killed his father. PW6 confirmed that the man arraigned before the court was the man he spoke about and testified that he got very scared when he heard what the accused had told him. Thereafter, he heard some screams and ran to where the screams were coming from. He found the deceased's body lying on the ground with a broken arrow next to him. There were two other arrows that were unused. The police collected the body from the scene and on the next day, it was taken to Iten Hospital Mortuary.

PW6 stated that his brother identified the body on 28th December 2006 for post-mortem purposes.

On cross-examination, PW6 stated that the arrow produced before the court did not belong to the deceased. He stated that by the time he heard the screams between noon and 1. 00 p.m, the accused person had left the scene and gone home. He stated that he recorded a statement with the police and stated that the accused had quarreled with his deceased father the previous day. He stated that Y and C with whom he was preparing the charcoal alongside the accused had finished their portion of work at 11. 00 a.m and left and so they did not witness the incident. PW6 further told the court that the trees they used to burn charcoal belonged both to himself and the accused. The land on which the trees were planted was of his grandfather. He stated that his father had lived on the land since the 1960s but in 1989 there was a land dispute and elders decided that his father vacates the land. He said that his father had fled the village after the killing of one J and went to live at Kochekelang'. He had only returned to their village on an invitation for a celebration. He stated that the accused was not being implicated merely because his (PW6's) father had killed accused's father. He stated that when he saw the accused after the incident, he was carrying non-poisonous arrows. He stated that he lived with the accused in the same house and knew that he had poisonous arrows but on that particular date, he did not have them.

He finally indicated that it was not true that his father had gone to the place they were working on the charcoal and tried to chase away C and Y. He stated that the body was found about 2 kilometers from where they were burning charcoal.

At the close of the prosecution's case, the court found that the evidence of two prosecution witnesses namely PW1 and 2 linked the accused to the death of the deceased. He was accordingly put on his defence.

He gave an unsworn statement of defence. According to him, he was burning charcoal with one D C in the presence of E C alias Y and C C. They burnt the charcoal until 11. 00 a.m. The charcoal belonged to himself and D C. He thereafter left for Keiyo where one of his wives lived.

On 28th December, 2006, the area Assistant Chief went to his home and asked him to accompany him to Kobulua Shopping Centre. That is where they were joined by two other people who asked him to accompany him to the police station. He later learnt that the two men were police officers.

On 28th December, 2006 the Assistant Chief of Marakwet in company of an Administration police officer visited him in the cell. They escorted him to Ndongo Police Station where he was locked up in the cells. On 29th December, 2006 he was escorted to Magil Police Station where he was told that he had killed somebody. Again on 30th December, 2006 he was taken to Kapsowar Police Station where he remained until February, 2007. He was charged on 26th March, 2007.

SUBMISSIONS

The prosecution filed written submissions which are dated 1st April.

According to the prosecution, PW1 and 2 saw the accused armed with a bow and arrows. Although PW1 did not see the accused shoot the deceased, he heard screams and on going to the scene, found the deceased had been shot. Thereafter the accused fled from the scene.

PW4 and 5 on the other hand confirmed that the accused surrendered himself to the police wherein he reported he had killed somebody.

The prosecution submitted that, although both the arresting and the investigating officers did not testify, it was clear that the evidence of PW1 – 4 placed the accused person at the scene of the crime. It was also clear that the accused had been with the deceased person on the material day, hence accused must be held culpable. After all, PW1 – 5 visited the scene and saw the body of the deceased there.

Learned counsel, Mr. Magare, advocate for the accused only filed submissions after the close of the prosecution's case. No further submissions were made after the close of the prosecution's case.

According to Mr. Magare, the absence of a post mortem report implied that it was difficult to tell who had died, what had caused the death or the date of the death. Hence the prosecution had not prove actus reus. And without prove of actus reus, it was difficult for the court to address the issue of mens rea. He also submitted that the prosecution failed to link the accused with the charge.

I have accordingly considered the evidence on record. As to the fact of the death of the deceased, it is important that a post mortem be carried out on the body of the deceased. This exercise is particularly important because it ascertains the cause of the death of a deceased. Once this question has been settled, it becomes easy to link the death with the evidence adduced as to what caused the death of the deceased and whether the death was caused by an act or omission attributed to the accused. The absence of a post mortem report may not, however, necessarily vitiate any other strong evidence already on record that it is the accused who killed the deceased. Such evidence must be direct evidence; for instance where a person states that he saw an accused killing the deceased, and the deceased dies at the scene. To be more precise, a good example of such evidence is in an instance where a witness sees the accused strike the deceased with a weapon and the deceased dies instantly. In such scenario, the fact of the death and its cause is unquestionable. Each case must however be considered under its own circumstances and variables. Rebuttal evidence of the defence must also be taken into account.

In the instant case, the deceased died at the scene. And although a post mortem report was not presented, the death of the deceased cannot be disputed. He was a few minutes to his death in the company of PW1 and 2. They are the persons who rushed to the scene and found him bleeding after being shot with an arrow. The fatal arrow was lying next to the deceased's body. Other two unused arrows which had missed him were also on the ground. It is therefore safe to say that the deceased died after being shot with an arrow.

The question that follows then is, whether it is the accused who shot him (deceased).

According to PW1, he was herding cattle with the deceased and PW2 (deceased's son). The accused emerged where they were and scared them away. They ran away and the deceased ran in a different direction after which the accused shot him with an arrow. PW1 and 2 then went to where the deceased lay and they found him dead.

According to PW2, although himself, PW1 and the deceased ran away after they were scared by the accused, he was able to see the accused shoot the deceased.

I then pose the question, if PW1 and 2 ran into a different direction from the deceased, at what point did PW2 see the accused shoot the deceased? This question was not clearly addressed by the prosecution when leading PW2 in his evidence in chief. It was important that the prosecution sought to know how PW2 was able to see the accused shooting the deceased yet himself and PW1 were running in a different direction from the deceased.

It is also important to note at this point that PW1, PW2 and the deceased were frightened after they were scared by the accused who was armed with a bow and arrows. That is why they ran away. In those circumstances, it begs to conclude how PW2 had sufficient time to see the accused shoot the deceased. That is why I am more inclined to believe the testimony of PW1 that himself and PW2 realized that the deceased had been shot after they rushed back to the scene and found him dead.

Hence, with the contradicting evidence of PW1 and 2 who saw different things at the same time, it becomes difficult to conclude that the deceased was shot by the accused. I shall resolve that contradiction in favour of the accused.

Of course, the evidence points a guilty finger at the accused. He went to where PW1, PW2 and the deceased were herding cows while armed with a bow and arrows. He then scare them away. As they ran away, the deceased fell down. As fate had it, he had been shot and was dead. Thereafter the accused fled the scene. But PW1 and 2 gave contradicting account of what exactly transpired. In the instance, it is difficult to conclude that indeed it is the accused who shot the deceased. Coupled with the fact that an examination of the body was not done so as to ascertain the actual cause of the death, again, I cannot conclude that the deceased died from a poisoned arrow as alluded by PW1, 2 and 3.

I also take note of the fact that the investigating officer did not testify. Whilst his evidence may not be mandatory where other strong evidence implicates an accused, in the present case, he would have shed light as to what made him arrive at the conclusion that it is the accused who killed the deceased. Thus, his evidence would have been vital in the circumstances.

It is trite that in a criminal case the burden of proof lies with the prosecution to prove its case beyond all reasonable doubts. Even where suspicions are strong that the accused may be guilty, those suspicions can never found a ground for a conviction. As well, the burden of proof can never shift to the accused to proof his innocence. In this case, the prosecution has entirely failed to discharge its burden.

Finally, it is important that I address the issue of the alleged unconstitutional detention of the accused in the police custody. He raised this issue in his defence wherein he indicated that he was remanded in the police custody from 27th December, 2006 until February, 2007. I do however note from the record that this is an issue that was raised before Honourable Justice Mwilu (as she then was) and a ruling delivered on 30th September, 2010 in that regard. I am not therefore inclined to make a second ruling on the issue. Suffice it to say, though, I concur with the finding of the court in the ruling.

In the end, it is my view that the prosecution did not discharge its burden of proving the case beyond all doubts. I find the accused not guilty of the offence of murder as charged and I acquit him accordingly.

DATED and DELIVERED at ELDORET this 23rd day of October, 2014.

G. W. NGENYE – MACHARIA

JUDGE

In the presence of:

Mr. Marube holding brief for Magare for the Accused

Mr. Mulati for the State