[2015] KEHC 3677 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT ELDORET

CRIMINAL CASE NO.1 OF 2010

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

VERSUS

JOSEPH KIPKEMOI KITE.......................................................ACCUSED

JUDGMENT

The accused, Joseph Kipkemoi Kite was charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. It is alleged that on the 20th day of December, 2009 at Kipkalwa Village in Keiyo District within the Rift Valley Province, murdered Robina Kite.

The Evidence

The prosecution called a total of six (6) witnesses.

PW1Mathew Koech Kemboi testified that he had just returned home from a ceremonial gathering on 20th December 2009 at about 10. 00 p.m after receiving a call from his father. On arrival home, his father told him of a disagreement he had with his sister by the name Robina but did not tell him the cause of their disagreement. He told PW1 that he fought with his sister who injured him in the process. PW1 went to look for his aunt at her house only to find the house locked. He then jumped into the house and found her lying on the ground foaming on her mouth. He called the neighbors and other relatives to the scene. The area Chief also came to the scene. Shortly thereafter the police were called and on arrival took away the deceased body. The police then arrested his father who was the first suspect and charged him with the offence of murder. According to Pw1, the relationship of the deceased with her father prior to the incident had never been good.

In cross examination, PW1 indicated that the deceased was his aunt. He observed that the deceased and the accused had always disagreed over a portion of land.

PW2, Thomas Kwambai testified that on 20th December, 2009 at about 8. 00 p.m. he was at home asleep when he heard screams from a neighbour's homestead. He went out and proceeded to the neighbour's homestead which belonged to the accused. He found the deceased and accused fighting whereupon he stepped in and separated them before he went back to his house to sleep. He was awakened later by Mathew Koech (PW1) who told him that he had found the deceased in her house with foam coming out of her mouth. He went and confirmed this fact. He then called his nephew Nelson to witness the scene. Several people came to the scene, while the police came on the following day. He later recorded his statement with the police.

In cross examination, he stated that he found both accused and deceased fighting and they were both drunk.

PW3,Monica Kite was the deceased’s sister and the accused was her brother. She was asleep on the fateful day at her mother - in laws place when she was woken up by PW1 informing her of the deceased’s death. She then went to the deceased’s home where she found her lying down with foam on her mouth. She found people at the scene who were alleging that the deceased had taken poison. She remembered that the accused and deceased had fought that day at about 6. 00 p.m before they were separated. PW1 described both the deceased and the accused as sister and brother. She noted that they previously used to have their own disagreements.

In cross examination, she stated that during the fight the accused sustained an injury on his forehead while the deceased suffered no injury. She stated that the deceased was alleged to have taken poison which was in a tin under a bed, which tin was taken away by the police.

PW4,Nelson Barmao a trader at Iten was in his house on the fateful day at about 10. 00 p.m. when he received a call informing him that the deceased who was his aunt had taken poison. The accused person was his uncle. He went to the deceased’s house and thereafter went looking for a pint of milk to give her. He found some milk and returned to the home of the deceased to administer it to her but the milk did nothing to salvage the situation. They then decided to take the deceased to the hospital but by then she was dead. They called the chief who came and was shown a pesticide which the deceased was alleged to have taken as poison. The police arrived at the scene later and were handed over the tin containing the poison.

Pw4 further testified that on 22nd December, 2009, they found some notes written by the deceased lamenting about her problems with her in-laws. He handed over the notes to the police. He recorded his statement with the police on 30th December, 2009.

In cross examination, he noted that the deceased was living at her parents’ home at the time and not in her marital home. He stated that the deceased and the accused person had a good relationship.

Having been examined in chief, cross examined and re-examined on 31st of May 2011, PW4 was re-called on 21st October 2014 for further cross-examination. He stated that after the deceased died, he read the suicide note in which the deceased had stated that no one should be blamed if anything happened to him. At the time, he found the deceased had some medicine on her hand and foam coming from her mouth. In re-examination, he stated that he read the suicide note and that he saw a small swelling on the deceased’s head.

PW5,Alice Chemjor Chebii was at her home in Keiyo District on 20th October, 2009 at about 9. 00 p.m. when PW3 (Monica) told her that she would sleep with the children on that day. She then decided to go and sleep elsewhere. On the following day, she heard that the deceased had taken poison and died. However, after post mortem, it was found that the deceased was assaulted. She described as “good” the relationship the deceased had with the accused.

PW 6,Dr. David Chumba performed an autopsy on the deceased body on 28th December 2009 at the Moi Teaching & Referral Hospital. He conducted the autopsy and completed the necessary post mortem form which he produced in court as (P. Exhibit 1). He did not find any injury on the body. It had no smell of poison or alcohol. He established that the cause of death was occasioned by manual strangulation.

In cross-examination, he stated that no samples from the body of the deceased were forwarded to the government analyst for examination.

The accused gave a sworn statement of defence in which he denied committing this offence. He denied having quarreled with his sister or having had any differences with her. He said he was woken up on the fateful day at midnight by PW1 his son who informed him that his sister was foaming on her mouth. He went and found the deceased holding some drug and milk. They then called the Chief who in turn called the police. The following day on 21st December 2009, they found the note at the deceased place. He observed that the deceased had left her husband’s place and returned to stay with her mother as she had differences with her in-laws. He stated that he did not record a statement with the police. He also stated that the note in question was read in the memorial service of the deceased. He was later arrested to his utter shock and disbelief.

Mr. Mulatifor the State in his submissions argued that the deceased died of manual strangulation and not poisoning. He pointed out that the suicide note and chemical that were mentioned to have been found at the scene were just but a cloak by the accused person to conceal what he had done. He submitted that the deceased and the accused persons had fought on the material day. He observed that the evidence of Pw3 was that the deceased and the accused persons had their own disagreements all the time.

He further submitted that at the time the deceased was separated with her husband, she had no injuries. Even the accused had none. But when the accused was arrested he was found with injuries which he confirmed had been inflicted on him by the deceased. In the premises, the State Counsel opined that the accused contrived to kill the deceased. He observed that his conduct of sending Pw1 to go and check on the deceased was symptomatic of the fact that he knew the deceased had already died. He urged the court to find the accused guilty of killing the deceased and convict and sentence him accordingly.

Mr. Koros, Counsel for the accused submitted that none of the prosecution witnesses saw the accused murder the deceased and that their evidence was mere hearsay evidence.

Regarding the issue of poison, and whether the deceased could have consumed the same, the defense counsel urged that all the witnesses called by the Prosecution stated that the deceased could have taken poison which led to her death. He argued that the presence of foam oozing from the mouth and nose of the deceased was evidence that the deceased could have taken poison. Further, he observed that the presence of a tin of chemical found beside the deceased’s bed corroborated the evidence that the deceased could have died from taking poison.

Finally, the defence counsel argued that the prosecution failed to call all the witnesses they had lined up and called a number far below what would have proved a case against the accused. He urged the court to find the accused not guilty and acquit him.

The burden to prove a charge of murder lies on the prosecution. The prosecution has to prove the charges against the accused person beyond any reasonable doubt. They must prove that the accused by some act or omission with malice aforethought caused the death of the deceased. In the instant case, the evidence adduced by the prosecution is circumstantial in nature. From the evidence, it is quite clear from the evidence of PW2 that the accused and deceased were seen fighting and prevented from continuing in the same.

In cross-examination PW2 recalled that both the accused and deceased were drunk while engaging in the fight. The accused clearly had a pivotal role in this crime. From the evidence on record, I find it quite telling how the accused described his fight with the deceased to PW1 and got him injured in the process. The subsequent search by PW1 to look for his aunt led him to her house only to find her aunt mysteriously killed. That he knew and even directed PW1 to where the deceased was, not to mention that they had quarreled, puts the accused squarely in the picture of events leading to the deceased’s subsequent mysterious death.

PW3 on her part described how the deceased and accused used to have their own disagreements and how both were drunkards who normally took “changaa”.

PW6 on his part having done a postmortem did not find any injury, the body had no smell of poison or alcohol. I do note however that he established that the cause of death was occasioned by manual strangulation. The basis of this finding in my view is not very clear as it was not indicated whether there were any marks found on the deceased’s neck or some sort of suffocation that would result to such conclusion. If anything, the words PW6 uses to describe this hypothesis is “The cause of death was probable by manual strangulation” which without any explanation are vague.

From the evidence of PW4 and PW5, the deceased and accused person seemed to have been having a good relationship with each other.

Further, PW4 talked of some notes that were found which were written by the deceased lamenting about her problems with her in-laws. This, in my view, could explain why the deceased was living at her parents’ home and not her marital home as expected, as there might have been some sort of a strained relationship between them. However, these notes were not produced in court and neither was the medicine that was found with the deceased by PW4.

Section 203 of the Penal Code defines murder in the following terms:“Any person who of malice aforethought causes the death of another person by an unlawful act or omission is guilty of murder.”

Thus, the central ingredients of the offence of murder are a)malice aforethought; b) an unlawful act or omission on the part of the accused.

Section 206 defines malice aforethought in the following terms:-

“206. Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances –

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;

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;”

This simply means that the prosecution must prove that the accused person herein had the intention to cause the death of or to do grievous harm to any person; that he had the knowledge that his act or omission causing death would probably cause death either to the person intended or to some other person.

The question that arises in the instant case is whether there is any evidence on record tending to prove the above ingredients of the offence of murder against the accused person. In my considered opinion there is neither direct nor indirect or weighty circumstantial evidence tending to prove any of the above ingredients.

From the above summary of evidence, it is very clear that the police casually investigated the case and failed to close glaringly obvious gaps that would have nailed the accused. This weakened the prosecution’s case who failed to discharge their burden to the required standard.

In view of the above, I would make a finding that the accused is not guilty of the offence of murder and accordingly order an acquittal under Section 306 (1) of the Criminal Procedure Code.

DATED and SIGNED this 22nd day of June 2015.

G. W. NGENYE – MACHARIA

JUDGE

DELIVERED at ELDORET this 2nd day of July, 2015.

By: G. K. KIMONDO

JUDGE

In the presence of:-

Mr. Isiji for Mr. Koros for the accused.

Miss R. N. Karanja for the state.