[2022] KEHC 17121 (KLR)

Republic v Kipkeu (Criminal Case 5 (E027) of 2021) [2022] KEHC 17121 (KLR) (3 October 2022) (Judgment)

Neutral citation: [2022] KEHC 17121 (KLR)

Republic of Kenya

In the High Court at Kitale

Criminal Case 5 (E027) of 2021

AC Mrima, J

October 3, 2022

Between

Republic

State

and

Dennis Kiptoo Kipkeu

Accused

Judgment

1. The accused herein, Dennis Kiptoo Kipkeu, was charged with the offence of Murder contrary to section 203 as read with section 204 of the Penal Code.

2. The particulars of the offence were as follows: -On the January 26, 2021 at Kiptoi village, Kiptol Sub-location, Trans-Nzoia East Sub-county within Trans Nzoia County, the accused person murdered Joseph Kipkeu Kanda.

3. When the accused was arraigned and charged before court, he denied committing the offence thereby prompting the hearing of the case against him.

4. After the close of the prosecution’s case, the court found that a prima facie case had been established against the accused. The accused was placed on his defense. The accused elected to give sworn testimony and called no witness.

The Prosecution’s case: 5. The Prosecution called a total of 14 witnesses.

6. Until his death, the deceased herein (Joseph Kipkeu Kanda) was the husband to one Elizabeth Lokolol who testified as PW1. The deceased was also the father to Kelvin Kiplagat Kipkeu, Winnie Chepkorir, Brian Cheruiyot Kipkeu and Bavis Kipkeu who testified as PW1, PW3, PW6 and PW8 respectively. The deceased was also the father to Cynthia Cheptoo.

7. The deceased was a step father to both the accused and one Davis Kipkeu Korir who testified as PW8.

8. As a family unit, they lived in a homestead in Kiptoi village. There were several house units within the compound. PW1 lived with her husband, the deceased, in one of the houses together with their children including PW3.

9. The accused similarly lived in the homestead and shared his house with his wife and child.

10. PW2 and PW6 shared another house.

11. Jonathan Koech (PW4) was a neighbour of the deceased. He was a farmer and lived about 20 metres away. Peris Cheruto Mutai (PW5) was also a neighbour to the deceased, but lived around 200 metres away. PW7 was a village elder one Isaac Kinuthia Ngugi and while PW9 (Francis Njuguna Kiragu) was a National Police Reservist.

12. On the fateful night of January 26, 2021, the deceased, PW1, PW2, PW3, PW6 and Cynthia Cheptoo dined together at around 8:30 pm Thereafter, they all retreated to their respective houses and/or rooms to sleep. At around 11:00 pm, the quiet moonlight night was interrupted by screams emanating from PW2’s house. The accused, in a drunken stupor, was outside PW2’s home knocking and hitting the door. PW2 came out of his house and asked the accused to return to his house. The accused was irked by the request to retreat to his house.

13. In a fit of rage, the accused punched PW2. A fight ensued. The accused then hit PW2 with a rungu. PW2 ran away for cover and hid behind the house.

14. All the while, PW6 heard the commotion. He also heard the accused saying that he was going to kill someone that night. He remained in the house. He was able to see what was transpiring with the aid of PW2’s phone light coupled with the moonlight.

15. PW1 emerged from her house to investigate the cause of the screams. She heard the accused knocking the door of PW2’s house saying “Open the door. I will kill you today.” Meanwhile, PW4, also alarmed by the screams, approached the scene. The accused was wearing cap, T-shirt and black trousers.

16. PW3 who was in the house with her father (the deceased) and her mother (PW1) was also awoken by the screams. She, however, remained in the kitchen area of the house as she was pregnant.

17. She witnessed the accused enter the house and picked a knife. The accused, then armed with the said knife, matchbox and rungu, surfaced from the house.

18. As the accused walked out of the house, he threatened to set PW2’s house ablaze. He gathered pieces of newspapers and cushions from PW2’s house and set them on fire. All that was in full glare of PW1, PW4 and PW6.

19. It was at this juncture that the deceased came from his house and approached where the accused was. The deceased inquired from the accused as to the cause of burning the newspapers and the cushions. In response, the accused hit the deceased person. A scuffle ensued.

20. PW1 intervened. She attempted to shield the deceased from the accused. PW1 was, however, overpowered.

21. PW1, PW3, PW4 and PW6 then saw the accused stab the deceased on the left side of his abdomen and vanished. The deceased screamed saying “Kiptoo has stabbed me.” He then collapsed.

22. PW1 raised an alarm prompting PW2 to emerge from his hiding place. The screams also caught the attention of PW5. They all gathered where PW1 and the deceased were. They found the deceased lying in a pool of blood with stab wounds on the chest and abdomen. The deceased repeatedly asked for drinking water.

23. Following the incident, PW2 and PW6 rushed to PW8’s home to seek for help to rush the deceased to hospital. They woke up PW8 who worked as a boda-boda operator. After briefing him on what had transpired, PW8 rushed to the scene with his motor-cycle.

24. PW8 found the deceased still asking for drinking water. Accompanied by PW2, PW8 rushed the deceased to Cherangani Nursing Home.

25. The deceased was, however, pronounced dead on arrival. He had long succumbed to the injuries inflicted on him.

26. PW7 got wind of what had transpired that night. He informed the local Chief who then called PW9 (a National Police Reservist). PW9 called his counterpart PW11 one Emmanuel Nyongesa Simiyu, also a National Police Reservist. He briefed him of the incident.

27. PW11 in turn called another National Police Reservist one Robert Sitati who testified as PW12. All the three reservists proceeded to the scene.

28. On arrival, they found a semi-burnt cushion, blood, ashes, a cap and a sandal. They learnt that the accused had fled the scene. They managed to trace the accused who was hiding in a nearby forest. They arrested and escorted the accused to Cherangani Police Station. At the time of arrest, the accused was in possession of a blood-stained knife.

29. No 6xxx8 Cpl Tom Ogaro, attached to the DCIO Trans-Nzoia and who conducted investigations in the matter testified as PW13. He took photographs of the scene. He also collected pieces of burnt newspapers and cushions from the scene as well as a sandal left behind by the accused as he fled. He further collected a blue blood-stained T-Shirt with a cut mark on the chest area, a black trouser, a coat with a cut mark and a pink jumper. He further interrogated potential witnesses and gathered evidence.

30. On completion of the investigations, PW13 recommended the charging of the accused with the information of murder. The recommendation was approved by the Office of the Director of Public Prosecution who drafted the information dated February 4, 2021. The accused was accordingly charged.

31. PW13 eventually produced all the items he gathered in the course of the investigations as exhibits in the matter.

32. No 2xxx30 IP Frederick Simiyu, a Scenes of Crime expert was also attached to the DCIO Trans-Nzoia. He was PW14. He processed the photographs taken by PW13 from the scene.

33. Following the death of the deceased, the body was transferred to the mortuary for an autopsy. It was conducted by PW10, Dr Fred Mwanikah, a Medical Officer attached at Cherangani Nursing Home on February 2, 2021. It was PW8 and one Jane Tale Kenda, who identified the body prior to the autopsy.

34. In the course of the autopsy, PW10 observed that the deceased’s external appearance was pale. There were healing wounds on the legs. There were two fresh wounds on the upper and lower parts of his abdomen. The skin was intact save for two piercing wounds observed on the abdomen.

35. Internally, PW10 established that the deceased was a smoker. However, the respiratory system, head and esophagus were normal. There was blood on his pericardium and intestines. His liver had a penetrating wound measuring two inches in length.

36. PW10 concluded that the cause of death of the deceased was severe internal bleeding due to liver injury leading to hemorrhagic shock. The Autopsy Report was also produced in evidence.

37. After close of the prosecution’s case, the court found that the accused had a case to answer. He was placed on his defence.

The Defence: 38. The accused elected to give sworn testimony without calling any witness.

39. The accused stated that on January 26, 2021, after work, he proceeded to Winger Bar where he took some drinks until around 7:30 pm. He was by then accompanied by PW2 and his other friends. He furthered stated that after the bar was closed, they all proceeded to PW2’s house to continue drinking. He then passed out as he was drunk. He was awoken at 6:00 a.m. by police officers. He was arrested and taken to Kachibora Police Station.

40. He denied committing the offence. He cited malice on the part of the prosecution witnesses. The accused nevertheless admitted that the cap and the T-Shirt were his.

41. After the close of the defence case, parties were directed to file their respective rival written submissions. Ms Rutto, learned counsel for the accused relied on the court record thereby relinquishing the right to file submissions. The Prosecution on the other hand presented its written submissions dated September 19, 2022.

42. The prosecution submitted that the state had established a case to the required standard of proof, being beyond reasonable doubt, against the accused. It urged the court to find the accused guilty as charged.

Analysis: 43. In criminal cases, for the prosecution to secure a conviction on the charge of murder, it has to prove three ingredients against an accused person. The Court of Appeal at Nyeri in Criminal Appeal No 352 of 2012 Anthony Ndegwa Ngari v Republic [2014] eKLR, summed up the elements of the offence of murder as follows: -(a)The death of the deceased occurred;(b)That the accused committed the unlawful act which caused the death of the deceased; and(c)That the accused had malice aforethought.

44. This discussion shall now endeavor to interrogate the above ingredients against the evidence on record.

The death of the deceased: 45. There are several ways in which the death of a person may be proved. In some instances, deaths may be presumed. (See section 118A of the Evidence Act, Cap 80 of the Laws of Kenya).

46. In this case, the death of the deceased is not in doubt. It was proved in two ways. First, there are several witnesses who vouched that they saw the deceased stabbed, wounded, bleeding and rushed to hospital where he was pronounced dead. Some witnessed a Post Mortem examination conducted on the lifeless body of the deceased. The body was later released to its relatives and was subsequently buried.

47. The second way in which the death of the deceased was proved was through the evidence of PW10, a Medical Doctor who conducted the autopsy on the body of the deceased.

48. PW10 observed a litany of injuries both internally and on the body of the deceased. He saw two fresh wounds on the upper and lower abdomen. The liver suffered a penetrating wound measuring two inches in length. This resulted in blood flow on the deceased’s pericardium and intestines.

49. PW10 concluded that the deceased died as a result of severe internal bleeding due to the liver injury leading to hemorrhagic shock.

50. This court, therefore, finds and hold that the death of the deceased in this case was proved to the required standard.Whether the accused committed the unlawful act which caused the death of the deceased:

51. There are 5 Prosecution’s witnesses who were locus in quo when the deceased was injured. They all variously recalled the transpirations leading up to the death of the deceased.

52. The evidence forming the prosecution’s case has already been summed up above. It is the evidence of PW1, PW2, PW3, PW4 and PW6. They all affirmed that it was the accused who stabbed the deceased in the abdomen.

53. The evidence of the said five witnesses is in consonance with the findings of the autopsy. The examination confirmed that the deceased had two fresh wounds on the upper and lower abdomen which wounds penetrated into the liver and raptured it.

54. The trial court heard the witnesses testify before it. The court did not make adverse conclusions on any of them either on their demeanor or their credibility. There was also no allegation of bad blood between any of the witnesses and the accused. To the trial court, the witnesses were credible and believable.

55. The accused, however, tendered his defence against the foregoing backdrop. In his defence, the deceased denied committing fatal act. He maintained that he was on a drinking bender at PW2’s homestead. He thereafter passed out because he was drunk.

56. This court has considered the accused’s defence. Weighing it on a balanced scale against the evidence of the five witnesses, this court finds that the defence is not only weak and inconclusive, but also untrue. The accused was even not arrested in a house as he alleged while asleep. He was arrested in a bush and at night as he hid himself after committing the heinous act. In fact, the defence is a mere afterthought.

57. There were several eye-witnesses. They all knew the accused well as a family member. Further, there was bright moonlight and torch light as well. The witnesses were in contact with the accused. In fact, a fight ensued between the accused and PW2 where PW2 was punched and ran for his life. He went and hit behind his house. It was then that the accused went and armed himself and attacked the deceased who had approached him to find out why he was about to torch the house of PW2.

58. This court concludes that there was no need for any other mode of identification of the assailant. The visual identification by the eye-witnesses coupled with the dock identification were sufficient to place the accused as the assailant. (See Court of Appeal in Douglas Muthanwa Ntoribi v Republic[2014] eKLR and Criminal Appeal No 274 and 275 of 2009 at Eldoret in Peter Okee Omukaga & Another v R(unreported) among many others).

59. The defence did not, therefore, in any way whatsoever challenge the prosecution evidence. The defence did not create any doubt at all, leave alone a reasonable one, on the prosecution’s case. The defence is, hence, for rejection.

60. In sum, this court finds and hold that the death of deceased was caused by the accused who inflicted the two fatal wounds on the deceased. The evidence of the prosecution stands out well corroborated and deliberate as to the truthfulness of those facts.

Whether there was malice aforethought: 61. The court will now consider whether the accused acted with malice aforethought in injuring and killing the deceased.

62. Section 206 of the Penal Codedefines 'malice aforethought' as follows: -206. 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.

63. The Court of Appeal has also dealt with the issue of malice aforethought on several occasions.

64. InJoseph Kimani Njau v Republic [2014] eKLR, the Court of Appeal in concurring with an earlier finding of that Court (but differently constituted) in Nzuki v Republic [1993] KLR 171, held as follows: -Before an act can be murder, it must be aimed at someone and in addition, it must be an act committed with one of the following intentions, the test of which is always subjective to the actual accused; -i)The intention to cause death;ii)The intention to cause grievous bodily harm;iii)Where the accused knows that there is a serious risk that death or grievous bodily harm will ensue from his acts, and commits those acts deliberately and without lawful excuse with the intention to expose a potential victim to that risk as the result of those acts.It does not matter in such circumstances whether the accused desires those consequences to ensue or not in none of these cases does it matter that the act and intention were aimed at a potential victim other than the one succumbed The mere fact that the accused’s conduct is done in the knowledge that grievous harm is likely or highly likely to ensue from his conduct is not by itself enough to convert a homicide into a crime of murder. (See Hyman v Director of Public Prosecutions [1975] AC 55”. (emphasis added).

65. In the case of Nzuki v Republic(supra), the accused had dragged the deceased out of the bar and fatally wounded him with a knife. There was no evidence as to their having been any exchange of words between Nzuki and the deceased neither was there any indication as to why Nzuki went into the bar and pulled the deceased straight out and stabbed him. It was rightly observed in that case that the prosecution was not obliged to prove malice but just as the presence of motive can greatly strengthen its case, the absence of it can weaken the case. The Court of Appeal in allowing an appeal and substituting the information of murder with manslaughter observed as follows: -There was a complete absence of motive and there was absolutely nothing on record from which it can be implied that the appellant had any one of the intentions outlined for malice aforethought when he unlawfully assaulted the deceased with the fatal consequences. Other than observing that the appellant viciously stabbed the deceased and in so doing intended to kill or cause him gracious harm, the trial court did not direct itself that the onus of proof of that necessary intent was throughout on the prosecution and the same had been discharged to its satisfaction in view of the circumstances under which the offence was committed. Having not done so, we are uncertain whether malice aforethought was proved against the appellant beyond any reasonable doubt. In the absence of proof of malice aforethought to the required standard, the appellant’s conviction for the offence of murder is unsustainable. His killing of the deceased amounted only to manslaughter.

66. This court will now juxtapose the above with the facts in the case.

67. The prosecution heavily relied on the allegation that the accused had previously threatened to kill the deceased on account of a land dispute. The fact is not denied. However, there is evidence that the land dispute was settled by the chief.

68. There is no any other allegation of animosity between the accused and the deceased after the amicable settlement of the first one. The accused and the deceased were close family members. On the day of the incident, the accused had not even differed with the deceased, but PW2. The cause of the difference between PW2 and the accused was not given out.

69. The attack on the deceased by the accused was spontaneous. The accused was busy lighting some fire before the deceased approached him for an explanation. That is where the accused attacked the deceased.

70. By applying the subjective test inJoseph Kimani Njau v Republic case (supra), this court is unable to find malice aforethought in the circumstances of this matter. Whereas the accused caused the fatal injuries, there is no proof of malice to the required standard. The killing only amounted to manslaughter.

71. The foregoing analysis does not, therefore, support a conviction in respect of the information of murder. The accused is, hence, found not guilty of the murder of the deceased.

72. However, it is apparent that the deceased lost his life as a result of the actions of the accused, but of course without any malice aforethought.

73. In view of the provisions of section 179(2) of the Criminal Procedure Code, chapter 75 of the Laws of Kenya and given the state of the evidence on record and as analyzed hereinbefore, this court finds the accused guilty of the offence of Manslaughter contrary to section 202 of the Penal Codeand he is accordingly convicted accordingly.

74. Orders accordingly.

DELIVERED, DATED AND SIGNED AT KITALE THIS 3RD DAY OF OCTOBER, 2022. A. C. MRIMAJUDGEJudgment delivered in open Court in the presence of:Miss. Ruto, Learned Counsel for the Accused.Miss. Kiptoo, Learned Prosecutor instructed by the Director of Public Prosecutions for the State.Kirong/Bernard – Court Assistants.