[2017] KEHC 121 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAKURU

CRIMINAL CASE NO. 99 OF 2013

REPUBLIC.................................................................STATE

VERSUS

JOSPEH KIPLANGAT MASIBA......................ACCUSED

JUDGMENT

The accused JOSEPH KIPLANGAT MASIBA faces a charge of MURDER CONTRARY TO SECTION 203 as read with SECTION 204 OF THE PENAL CODE.

The particulars of the charge were that

“On the 18th day of October, 2013 at Riprip Village, Kaptangich Location in Kuresoi District within Nakuru County, joint with another not before court murdered SAMUEL RONO ROTICH”.

The accused pleaded ‘Not Guilty’ to the charge and his trial commenced before this court on 21/7/2016. The prosecution led by the learned State Counsel called four (4) witnesses in support of their case. PW1 LEONARD KIPCHIRCHIR SANG told the court that on 18/10/2013 at 6. 30pm he and the deceased went to take local brew. The deceased was a community policing officer in the area. The deceased had been searching for the accused person whom he claimed was wanted at the police station. Later the two went to the home of the accused.

The accused received them well and the deceased informed the accused that he had come to escort him (accused) to the police station. The accused declined to go until he had tied up his cattle. PW1 and his companion went to tie the cattle.

Suddenly the accused ran out of his house wielding an axe and a panga. He was shouting that his home had been invaded by cattle thieves. The accused aimed a panga at PW1 and PW1 managed to evade being cut. PW1 then ran away to save his life and went to hide in the river for five hours. The next day he heard that the deceased had been killed.

PW2 JONATHAN KIMETTO was the Chief of Tagich Location. He told the court that on 20/10/2013 he received a report that the deceased was missing from his home. Later PW2 was informed that a dead body had been seen at the river. PW2 alerted police and he accompanied police to the river. There he found a body partially submerged in the water. PW2 identified the body as that of the deceased. Police removed the body to the mortuary. The accused was later arrested and charged.

At the close of the prosecution case the accused was found to have a case to answer and was placed onto his defence. The accused gave a sworn defence in which he denied having killed the deceased.

The offence of murder is defined by Section 203 of the Penal Code of Kenya as follows

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

In order to prove the charge of murder the prosecution must adduce evidence sufficient to prove beyond reasonable doubt the following three ingredients of the offence.

(i) Proof of the fact as well as the cause of the death of the deceased.

(ii) Proof that the deceased met his death as the direct result of an unlawful act or omission on the part of the accused.

(iii) Proof that the said unlawful act or omission was committed with malice aforethought.

In this case the fact of death of the deceased is not in any doubt. PW2 was the local chief who knew the deceased well. He confirms that the body which the police fished out of the river on 20/10/2013 was that of the deceased.

PW4 DR. GEORGE BIKETI testified regarding the autopsy that was conducted on the body of the deceased on 30/10/2013. The body was found to have a fractured skull. The cause of death was opined to be ‘severe head injury due to blunt force trauma’. PW4 produced the duly filled and signed post mortem report as an exhibit in the case P. exb 1.

The next question is whether it has been proved that it was the accused who hit the deceased on the head and fractured his skull leading to death.

There was no eyewitness who saw the accused or any other person assault the deceased and cause the fracture to his skull. PW1 testified that he went with the deceased to the home of the accused. The deceased who was a community policing officer had gone to arrest the accused and escort him to Kaptagich Police Station. Whereas the accused initially welcomed the two calmly to his home according to PW1the accused later turned and attacked the men with an axe and a panga. PW1 ran for his life and went to hide at a nearby river where he stayed for five hours.

Whereas PW1 said that the accused did try to cut him with a panga PW1 did not see the accused assault or cut the deceased. Indeed PW1 states that the deceased also tried to run away but since PW1 was faster he outran the deceased and left him behind.

Given that there was no eyewitness to the assault the prosecution seeks to rely on circumstantial evidence in order to establish the guilt of the accused.

Circumstantial evidence is that evidence which though not direct points directly to the accused as the perpetrator of a crime. The prosecution sought to rely on the testimony of PW1 that the accused was armed with an axe and a panga as proof that it was the accused who fatally assaulted the deceased.

However in his evidence PW1 stated that the accused did shout out claiming that the men in his home were cattle thieves. Neighbours responded to the alarm raised by the accused. In his evidence in chief PW1 stated that

“Accused was shouting saying we were cattle thieves. Neighbours all came out armed and we ran away…..”

There exists the very real possibility that it was one of these armed neighbours who chased and fatally assaulted the deceased on the erroneous belief that he had gone to the accused’s home to steal cattle. This possibility has not been ruled out by the prosecution.

PW2 who was the local chief told the court that he enquired from villagers who had killed the deceased. Some of the villagers informed PW2 that it was the accused who had committed the murder. PW2 did not name any of the villagers who told him this neither was any one of these villagers called to confirm having given PW2 this information. This then remains hearsay evidence and is not admissible as against the accused.

PW3 CORPORAL BONIFACE NDURURU was the arresting officer. He told the court that the local chief did bring three (3) eyewitnesses to the police station. It is therefore to be assumed that those witnesses recorded statements with the police.

Firstly this testimony of PW3 contradicts the evidence of PW2 who made no mention of having taken any witnesses to record statements at the police station. Secondly it is curious that out of these three (3) witnesses who apparently readily went to the police station the only one being PW1 was called to testify as a witness in this case. PW3 has given no explanation on what happened to the other 2 witnesses only says that he was not able to trace any eye witnesses.

On the whole I find that the prosecution have failed to proved beyond reasonable doubt that it was the accused who fatally assaulted the deceased. The actus reusof the offence of murder has not been proved as against the accused. The charge of murder has not been proved and I acquit the accused of this charge.

Accused is to be set at liberty forthwith unless he is otherwise lawfully held.

Dated in Nakuru this 6th day of October, 2017.

Mr. Oumo for Accused

Mr. Chigiti for DPP

Maureen A. Odero

Judge