[2022] KEHC 15724 (KLR)

Republic v Kibet (Criminal Case 11 of 2016) [2022] KEHC 15724 (KLR) (15 November 2022) (Judgment)

Neutral citation: [2022] KEHC 15724 (KLR)

Republic of Kenya

In the High Court at Nakuru

Criminal Case 11 of 2016

JN Mulwa, J

November 15, 2022

Between

Republic

Prosecution

and

Anthony Kipkorir Kibet

Accused

Judgment

1. Anthony Kipkorir Kibet, the Accused herein, is charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars are that on the night of 6th and January 7, 2016 at Tumaini Guest House in Nakuru Town within Nakuru County, he murdered Grace Wangare Muiruri. The Accused pleaded not guilty to the offence and the case proceeded to full hearing with the prosecution calling eight witnesses in support of their case.

2. The prosecution’s case can be summarized as follows:On January 6, 2016, PW6 Silvia Vungwa was working at Tumaini Guest house in Nakuru. She allocated room B8 to a customer called Korir, the Accused herein, who gave her his national identity card number but said he did not have a phone. She handed him the key upon payment of Kshs 600/=. The Accused went to the room and returned the key after about 15 minutes. He later came back with a woman and they went to the room together. PW6 Sylvia handed over to her colleague Mary the next day between 9. 30am and 10. 00am. Mary later called her and informed her that a woman had been found dead in room B8.

3. PW8 John Kibaiko Muturi, an IT technician specializing in electrical and computer networking had fitted and installed CCTV cameras at Tumaini Guest House sometimes in June 2015. The cameras were installed at the reception and on the corridors leading to the rooms in all the floors and all of them were working perfectly at the material time. He was called on the morning of January 7, 2016 by the manager of the Guest House and informed about the incident. He went to the guest house and retrieved the footages of the CCTV cameras showing the events that took place between 2053 hours on 6th and 6. 20am on January 7, 2016. The relevant CCTV footage was played to the court in the presence of the Accused, the prosecution counsel and defence counsel.

4. The footage from camera number 16 showed the receptionist, PW6, booking a room for the Accused on January 6, 2016 at 2053 hours. The footage from camera number 4 showed the accused entering room B8, changing and wearing a jacket then leaving the same room at 2306 hours. It also showed a girl arriving at the room at 2315 hours. However, no other activity was captured and nobody else went in or out of room after 2320 hours until 6. 20am on January 7, 2016 when the Accused was seen leaving the room with the jacket he wore the previous night but did not close the door to the room. He also confirmed that from the footage, only one person is captured to have entered the room before the police officers arrived.

5. At about 1. 50pm on the same day, PW2 No 231162 Chief Inspector Ernest Mamunga previously of Nakuru Crime Scene Support Services was shown the subject room where the deceased’s body had been found by Corporal Hamed Ali of Nakuru police station. The body lay on the bed covered with beddings. He took 12 photographs at the scene showing the following: general view of the hotel, close view of the building, view of sign board of hotel and rooms, view of rooms on the 3rd floor with rooms No B8 shown, view of the close walls of TV camera on the 3rd floor, close up view of the CCTV camera, view of the room including the bed where deceased lay; view of the toilet in the room, view of deceased covered with beddings, full view of the body and a close view of face with blood and foam oozing from the nostrils. PW2 processed and printed the photographs then prepared a certificate dated July 31, 2017 which he produced in evidence.

6. The deceased’s father, PW3 David Muiruri and her uncle PW4 John Njoroge Kamau received the news of the death on January 8, 2016. They went to Nakuru Municipal Mortuary to identify the body to the doctor. Her neck and head were swollen and it looked like she had been strangled.

7. On January 12, 2016, PW1 Doctor Daniel wainaina from the MOH Nakuru County with 16 years' experience examined the body of the deceased at Nakuru County Mortuary and conducted a postmortem. According to him, the body was of a female adult aged about 20 years. It had been embalmed on external appearance. He noted the following: peripheral cyanosis, facial puffiness's, minor bruising on face, bruises on anterio aspect of neck probably caused by finger nails, signs of pressure on anterior aspect of neck and a head injury. On internal examination, he noted features of strangulation, fracture of part of finger, extensive scalp hematoma on occipital region. He concluded that the cause of death was strangulation following physical pressure to the neck with head injury. He signed the Post mortem report which he produced in evidence as P exhibit 1. On cross examination, PW1 stated that he could not tell whether the head injury occurred before or after strangulation. However, he opined that the signs of cyanosis on the body meant that the deceased was alive at the time of being strangled.

8. On February 22, 2016, Corporal James Ndungu requested PW5 No 219338 Chief Inspector Joseph Balloti Kenga, the Deputy DCIO Nakuru to conduct an identification parade in respect of the Accused who was in custody at Central Police Station. There was only one witness, PW6 Sylvia Muhatia, an employee of Tumaini Guest House. PW5 picked out members of the parade totaling eight (8). He selected people who were of an approximate height and build as the Accused and conducted the parade at an enclosure within Central Police Station. The investigating officer was not present. He asked the Accused if he was willing to participate in the parade and he consented. He asked if the Accused required to have an advocate or relative present and the Accused said he did not.

9. He accommodated the witness in the crime branch office which is some distance away. He asked the Accused to choose where he wished to stand and the Accused opted to stand between no 7 and no 8 in the parade. PW5 then called the witness who went and positively identified the Accused by touching his shoulder. Thereafter, PW5 prepared and filled the parade forms. He asked the Accused if he was satisfied with the manner in which the parade was conducted and the Accused said he was satisfied but commented that the witness had seen him earlier. PW5, the witness and the Accused all signed the parade forms and the same was duly produced in evidence as prosecution exhibit 4.

10. The matter was investigated by PW7 No 61568 Sgt James Tangi from Special Crime Prevention Unit, CID Headquarters. He recalled that on January 7, 2016 while at Nakuru CID office, he was sent to Tumaini Guest house over a report that a lady had been killed therein. Together with officer Serem, they went and found the receptionist Silvia (PW6). She called the manager who PW7 interrogated. PW7 was given a receipt No 1072, dated January 6, 2016 in name of one Antony K Kipkorir for the room where the deceased’s body had been discovered. On the receipt was identification card number 30046428. They went to the CCTV room where PW7 was shown the image of the person giving the money and identity card and the receptionist giving the receipt and key at 8. 25p.m. The footage also showed that the person left room at 23. 15 pm and was later captured entering the same room with a woman.

11. Upon investigation, PW7 found out that the suspect hailed from Kabarnet, Pegera sub-location. They went there and talked to the chief who stated that the person had not been seen. They got his telephone number being xxxx. They tracked the telephone number to Nyahururu where they went then traced it to Kajiado. At Kajiado, they got a cousin of the accused who told them that the Accused had left the previous day.

12. On February 22, 2016, they got information that someone was admitted at Nakuru General Hospital. PW7 went there but the name was stated as Kiptor. PW7 saw the patient and confirmed that it was the same person that he had seen in the CCTV footage at the Guest House. PW7 spoke to the doctor and requested for waiver of charges which was granted. PW7 also requested for mental assessment of the Accused which was done on February 25, 2016. Thereafter, PW7 informed the OCS Central Police Station Nakuru who had the Accused arrested then he was charged with the offence.

13. The Accused gave sworn testimony upon being placed on his defence. He testified that on January 6, 2016, he left Kitengela where he lived at the time for his home in Eldama Ravine. He arrived in Nakuru at about 8:30pm. He did not get a vehicle home so he lodged at Tumaini Guest House. He entered the lodge at about 9:00pm and paid Kshs 600/= for Room No 8. He then went to eat supper in a hotel. While there, he met a woman who he liked. She told him her name was Jane. They ate together and watched football on TV then they went to the room he had booked together. At the reception, he picked the room key and proceeded into the room. He obtained a condom at the reception since he wanted to have sex with her. They agreed that he would give her Kshs 1,500/= and he gave her Kshs 2000/= in advance. They slept up to 6:00am then he left the room. He left the girl Jane in bed alive and proceeded with his journey to Ravine.

14. On January 8, 2016, the Accused went back to Kitengela in Kajiado. On February 16, 2016, he wanted to go back to Ravine to cultivate. He got to Nakuru in the evening and as he was going to Ravine stage, he was attacked and hit on the head. He later found himself at Nakuru Provincial General Hospital where he was treated. He had a lot of blood in the chest. He was admitted at the hospital. On 18 February 2016, some police officers went to the hospital and asked for Anthony Kiptoo. He told them he was not the one and gave them his names. He thought they were enquiring about the attack.

15. On February 22, 2016, the Investigating Officer went to the hospital and identified himself as a police officer. After 2 hours, the chest tube was removed and he was taken to CID office, Nakuru where he was shown a lady's photo. He told him that he did not know her. While there, three ladies and one man came in. He was then taken to the Central Police Station with the four people. He was sent to the police cells. At about 2:00pm, he was placed a police parade. One lady called Silvia Mbugua (PW6) said she could identify him. He was not told why he was at the police station. A parade was done. He was told in court that the reason was because of a murder case. He confirmed that he was the one in the CCTV footages shown to the court by PW8. He also admitted that the footage shows a lady getting into his room at 11. 15pm. However, he stated that he did not disagree with her and denied killing the deceased.

16. In cross examination, he admitted that the lady shown in the exhibited pictures is the Jane he had in the room but insisted that he left her alive.

Analysis and Determination 17. Upon carefully considering the evidence on record and the brief written submissions by Counsel for the Accused, I find that that the only issue for consideration is whether the prosecution has proved beyond reasonable doubt that the Accused was the person who killed the deceased.

18. The accused was charged under Section 203 of the Penal Code which provides as follows:“Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.”

19. Section 206 of the Penal Code provides for the circumstances which constitute malice aforethought as follows: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.”

20. It follows therefore that in order to prove a charge of murder, the prosecution must establish the following elements:-a.The fact and cause of death of the deceased.b.That the accused caused the death of the deceased through an unlawful act or omission. (Actus reus).c.That the accused had malice aforethought or intention to cause harm or kill (Mens rea).

21. In this case, the evidence available leaves no doubt that the deceased died on the night of 6th and January 7, 2016 between 2315 hours and 6. 20am. The photographs produced in court by PW2 clearly show the half-naked body of an adult female of African descent lying on a bed with foam and blood oozing out of the nostrils. Evidence on the cause of death was given by PW1 who conducted the autopsy. PW1 opined that the cause of death was asphyxia or strangulation following physical pressure to the neck and head injury. This expert medical evidence was neither challenged nor controverted by the defence. I therefore find that the prosecution proved beyond reasonable doubt that the deceased died through strangulation.

22. The next issue is whether the death of the deceased resulted from an unlawful act or omission by the Accused herein. The prosecution’s case against the Accused rests entirely on circumstantial evidence because no eye witness saw the Accused killing the deceased nor any of the events that took place between 11. 15pm and 6. 30am on January 7, 2016. Further, no CCTV footage was captured during the aforesaid period inside room B8 of the lodging.

23. In order to rely on circumstantial evidence as a basis for a conviction, the inculpatory facts in the prosecution’s evidence must be incompatible with the innocence of the Accused. In Joan Jebichii Sawe v Republic [2003] eKLR, the Court of Appeal stated thus:“In order to justify, on circumstantial evidence, 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. 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.”

24. In Abanga alias Onyango v Republic – Criminal Appeal Number 32 of 1990, the Court of Appeal set out the tests applicable in determining whether the circumstantial evidence adduced in a case is sufficient to sustain a conviction as follows:-“a.the circumstances from which an inference of guilty is sought to be drawn, must be cogently and firmly established;b.those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused;c.the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else.”

25. From the evidence on record, it is not disputed that the Accused booked room B8 at Tumaini Guest house in Nakuru on the evening of January 6, 2016 and later invited a lady to spend the night with her in the same room. PW6 testified that she was the one that gave him the room for which he paid Kshs 600/= and was issued with receipt number 1072 which was produced in evidence. PW6 saw the Accused leave the room shortly after booking then he returned with a lady and went with her to his room. PW6’s testimony was corroborated by the evidence of the CCTV camera footages produced by PW8 which clearly showed a lady entering room B8 at about 2315 hours. Further corroboration can be seen in the accused’s own admission in his defence that he indeed invited a lady into his room and spent the night with her.

26. However, the accused denies killing the deceased and claims that he left her in the room alive on the morning of January 7, 2016 at 6. 20am. In this regard, his counsel blamed the prosecution for intentionally omitting crucial evidence by failing to produce a CCTV footage showing the events from the time when the Accused left the room at 6. 20am to when the deceased’s body was found in the room. In counsel’s view, there is a possibility that the deceased was killed during that period and the real culprit may be out there walking freely.

27. Since the CCTV camera footages showed that no one else entered or left room B8 where the Appellant and the deceased spent the night after 2320 hours until 6. 20am on January 7, 2016 when the Accused was seen walking out of the room alone, and the deceased having later been found dead in the roomwith blood and foam oozing from her nostrils, the accused had a duty to explain how the deceased met her death. The above evidence placed on him a statutory burden to discharge a rebuttable presumption under Section 111 (1) and 119 of the Evidence which stipulate as follows:“Section 111(1)When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any exception or exemption from or qualifications to the operation of the law creating the offence with which he is charged and the burden of proving any fact especially within the knowledge of such person is upon him.Provided that such burden shall be deemed to be discharged if the court is satisfied by evidence given by the prosecution whether in cross-examination or otherwise, that such circumstances or facts exist. Provided further that the person accused shall be entered to be acquitted of the offence with which he is charged if the court is satisfied that the evidence given by either the prosecution or the defence creates a reasonable doubt as to the guilt of the accused person in respect of that offence.Section 119:The court may presume the existence of any fact which it thinks likely to have happened regard being had to the common course of natural events.”

28. In my considered view, no other possible explanation can be drawn from this set of facts other than that the accused was involved in the death of the deceased inside room B8 at Tumaini Guest House. The fact that accused calmly walked out of the room and left the deceased fully covered with beddings proves that he killed, her but wanted to make it look like she died from other causes. Further, the fact that he did not bother closing the door behind him when he left the deceased in the room that morning also shows that he imagined that the death would be blamed on someone else hence his defence that she may have been killed after he left the room.

29. In view of the foregoing, I do reject the submissions by counsel for the accused that the deceased must have been killed after he left the room merely because the prosecution did not produce a CCTV footage showing the events that occurred between that time and when the deceased’s body was found. This is clearly an afterthought and attempt to clutch at straws because the accused was represented by counsel during hearing and counsel did not raise the issue during the cross examination of the relevant prosecution witnesses.

30. Based on the weight of the circumstantial evidence, I am persuaded beyond any reasonable doubt that the accused person, and no other person, killed the deceased in room B8 at Tumaini Guest House.

31. The next issue is whether the accused had malice aforethought and/or whether his action was premeditated. Section 206 of thePenal Codeprovides for the circumstances which constitute malice aforethought as follows:“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 fight or escape from custody of any person who has committed or attempted to commit a felony.”

32. In this case, there could be no clearer evidence of malice aforethought than the manual strangulation of the deceased and injuring her on the head. The injuries could only be inflicted with the intention of, and knowing that they would cause the death of, or do grievous harm to the deceased within the meaning of Section 206(a) and (b) of the Penal Code.

33. Accordingly, I find that the prosecution has proved beyond reasonable doubt that the accused, Anthony Kipkorir Kibet, murdered the deceased and is therefore guilty of the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. I hereby convict him in accordance with section 215 of the Criminal Procedure Code.

DATED AND SIGNED AT NAIROBI THIS 1ST DAY NOVEMBER, 2022. J. N. MULWAJUDGEDELIVERED AND DATED AT NAKURU THIS 15TH DAY OF NOVEMBER 2022. H. K. CHEMITEIJUDGE