https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10775

Republic v Kiplagat (Criminal Case 13 of 2013) [2026] KEHC 10775 (KLR) (17 July 2026) (Judgment) Neutral citation: [2026] KEHC 10775 (KLR) Republic of Kenya In the High Court at Eldama Ravine Criminal Case 13 of 2013 TM Matheka, J July 17, 2026 Between Republic Prosecution and Moses Kipruto Kiplagat Accused Judgment 1.The accused person Moses Kipruto Kiplagatis charged with murder contrary to section 203 as read with section 204 of the Penal Code. That on 31/5/2020 at Kaplegich Village, Kamar Location, Mogotio Sub-County with Baringo County he murdered Caren Chebii. 2.The accused took plea on 27/7/2020 before Justice Edward Muriithi. He pleaded not guilty. 3.The matter was pending Plea Bargain Agreement till 19/10/2023 when the prosecutor told the court that the prosecution had found the request unsuitable and sought a hearing date. 4.The prosecution called 11 witnesses. 5.Pw1 Dr. Wekesa Mang’oli who conducted the postmortem testified that the following were his findings:.“External examination-unclothed body of African female-Age 30s- Fair nutritional status medium build.-Height 5feet 5inches.-Body had been embalmed and refrigerated.FindingsExternal Examination-Multiple abrasions on the face, right upper back, boTH knees, left mid leg. Anterior and lateral part is left chest; Abrasions on the left inner thigh lacerations of left labia minora and labia majora; Deep cut wound at the head at occipital and parietal and behind right ear; Cut was deep enough to expose the skull. ;Contusions on the left forehead.Internal examination-Uterus was not pregnant; lacerations on the left labia minora and majora; bleeding under the scalp, frontal, left parietal & occipital area; bleeding on both sides of the brain; bilateral extradural & subdural hematoma under frontal left parietal & occipital area; bleeding on top of the brain under the scalp and it was affecting both sides of the brain; dislocated spinal cord; head was moving freely because of separation of the neck; Spinal cord was injured.Upon the examination he formed the Opinion that:The cause of death was atlanto occipital dislocation/ internal decapitation with associated head injury.He also took blood and vaginal swabs and gave to police.He filled and stamped the form, which was produced as Pex 1. 6.On cross-examination he told the court that the deceased had dislocation of the cervical spine from multiple strikes. He said that she had multiple injuries, he said he could not say whether there was rape. He said he did not extract semen from the accused. 7.Pw2 Aron Koech told the court that Karen Chebii was his wife. That on 1/6/2020, he learnt that Moses had killed her. He attended the postmortem – on cross-examination he said Moses was his brother in-law. He said he did not go to where her body was found. He said it was her parents who told him about it. 8.Pw3 Philemon Kapsabit senior Assistant Chief, Koitumet Sub-Location. On 31/5/2020, he was on an illicit brew raid at 9:00 pm when one William called him and told him that a woman by the name Karen Chebii had been killed – they went to the scene – a thicket, arriving there at 3:00 a.m. They found the body of Karen, she was dead – there was blood from the mouth and blood from the back of her head. There were a few people at the scene. They called the police. 9.On cross-examination he said he could not go alone as it was night and he had to wait for back up – and KWS Officers arrived at 1100 pm – they found people on the road around 100 metres from the scene – he said they were told one Kipruto Kiplagat who had killed Karen. He said he was told by one Selly, the accused’s cousin. He reported to the police. 10.Pw4 Selly Rono told the court that deceased was her sister. On 30/5/2020 they were from the farm, then they were to the shopping centre. As they walked home – Selly said she was ahead and deceased was behind her. She said that the accused passed her, and hit the deceased. It was around 700 pm – it was not yet dark. She said accused came from Infront of her – then passed, hit the deceased. Selly said she turned and saw accused hit her. She fell down. She heard her sister telling the accused – forgive me. Selly said she ran home. 11.She said she called for help. She said they found that accused had pulled her sister into the forest and was having carnal knowledge of her. That he had pulled up her skirt, her blouse was on the side – that when the accused saw them, he took off – that the deceased was already dead. She said deceased’s pant and blouse were on the side. 12.On cross-examination she said that the deceased was far from where she was hit – her body was outside a house – they found her biker near the house. They found the accused with the deceased. 13.She said the accused was always drunk, he was drunk that day – she said there was conflict between the accused and deceased but on this day there was no struggle between the deceased and the accused. She said the accused just hit her sister, he did not try to hit her. 14.On re-examination she said they found the body in the forest. She said Accused was her cousin. She said he took her sisters mobile phone that she saw him with a knife – he did not ask for them for anything. 15.Pw5 Luka Kiplagat testified that Karen Chebii was her cousin. He said on 31/5/2020 he was at deceased’s home around 7:30 pm but around 6:30 pm he was with one Moses . He said he heard scream. Then Selly arrived saying that Karen was killing Kipruto ( sic) . He, Moses and Pw1 ran to the place – they flashed the torch – and saw blood stained sandal shoes, then the accused emerged from the forest – they were unable to arrest him – they found Karen lying on her back, without inner wear, her skirt pulled up – she was injured and she was raped. They brought her to the roadside – and looked for a motorbike. They rang the chief – who came at 1000 pm – that police recovered a stick at the scene. 16.He said when they arrived deceased was alive but could not talk – he said they rang deceased’s phone and accused picked the call. He said there was a home nearby that appeared deserted. 17.Pw6 Moses Kipkorir testified he was at home on 31/5/2020 when Selly arrived and told them to go rescue Karen. As they, he was Pw5, and Selly went they heard screams. As they got close they saw a shoe, then they saw the accused emerge from the forest – He ran away. He said he was married to the sister of the accused person. Her shirt had been removed. They dressed her, her head was bleeding. He said the accused did not have a wife, he had been charged with defilement, and that he was a thief. 18.Pw7 Kipsang Rono testified that on 31/5/2020 the accused Moses went and woke him up. When he opened the door for him – that the accused told him he had deleted someone – meaning he had killed someone – that he had blood on his hands and shirt. He later told him he had deleted Karen, also their cousin. He asked for a shirt to change, and a water to wash – it was 8:30 pm. 19.That he gave him the clothes and the accused wore the shirt and trouser over his own clothes. That accused went and told Pw7’s brother John what he had done. He and John went to home of parents of deceased to tell them. They found that they had been informed. On cross-examination he said the accused appeared shocked. He said he was not aware of any issues between accused and deceased. 20.Pw8 No. 235224, Simon Kamore was scenes of crime officer. He processed photos from the mobile phone of PC Sara Bokosh. There were 8 photos – which he produced together with the certificate. 21.Pw9 Polycarp Lutta from the Government Chemist received samples from DCI Mogotio. He received the following samples for examination.1.Two (2) vaginal swabs from Caren Chebii (deceased) marked “A1, A2”.2.Blood of Caren Chebii (deceased) marked “A3”.3.Buccal swab and blood from Moses Kipruto Kiplagat (accused) marked “B1, B2” respectively.4.A blue panty (with attached sanitary pad) in a clear evidence polythene bag marked “C -1”.5.A pink biker in a clear evidence polythene bag marked “C2”.6.A cream (grey/stripped) bedsheet in a clear evidence polythene bag marked “C3”.7.Walking stick marked “D1”.8.A navy blue jacket (brown patches) in a red carrier bag marked “D2”.9.A green short (cut trouser) in a clear evidence polythene bag marked “D5”10.A sleeveless “WARRIORS 3” (grey/black/red) jersey/t-shirt in a clear evidence polythene bag marked “D4”. 22.The vaginal swabs tested positive of seminal fluid, and the biker had human blood and seminal fluid; the bedsheet, walking stick, rope, jacket, t-shirt – tested positive for human blood. He found that the DNA Profile of Moses Kiplagat Ruto – the accused, DNA from the biker, rope, walking stick, jacket, bedsheet matched DNA of the deceased Karen Chebii, DNA profile for the T-shirt – matched that of the accused person. 23.He produced the report as PEX 13 (a), and the Exhibit Memo – Pex 13 (b). Cross-examined by counsel for accused he told the court that the samples were brought in a batch, and that he was not the one who collected the samples – they were submitted on 1/9/2020 – that if there had been any contamination of the samples the DNA would have been mixed. 24.Pw10 No. 61062 Senior Sergeant Johana Wambulwa was attached to DCI Mogotio at the material time. On 1/6/2020 – he and other police officers went to Solai where, with the help of officers from Solai Police Station – they arrested the accused person – they recovered a small mobile phone make Itel which had twin sim – they recovered a t-shirt with blood stains and green short some other items were recovered from he confirmed that the accused was arrested far from the scene. 25.Pw11 No. 52149 Japheth Mulimo was attached to DCI Mogotio. He said he visited the scene of crime and recovered exhibits. He also arrested the accused person. He said at the scene they found the body of a young lady – she had a cut wound behind the right ear, blood from her mouth, nose; the crime scene was disturbed, the stones there had blood. He took the body to the motor vehicle, began investigations. 26.He traced Selly the sister who narrated what had happened – that Moses was the boyfriend to her sister, and he attacked her – that he had taken her mobile phone – the police rang the phone, and traced the accused in Solai area where they found him. He produced the exhibits. 27.On cross-examination he said accused was the boyfriend of the deceased – He said at some point the accused wanted to rape the deceased. That all the exhibits that were recovered at the scene were those of the deceased. 28.The prosecution closed its case. 29.Upon this, the Judge put him on his defence. 30.I heard his defence. 31.He made sworn statement and did not call any witness. He told the court he recalled that evening he was coming from the home of Katony – he said he was with the deceased and the sister Selly – that they had been drinking. 32.According to him, Karen was upset, she was accusing him of having seen one Jepchumba another lady and was now abandoning her. He said that Karen picked a stone and hit him on the head – that he felt dizzy, she was still holding the stone. He had a stick in the hand, he said he decided to hit the stone – but when he hit out, he missed, and hit her face, and she fell down. That he went to pick her from the ground, he noticed that she was bleeding from the back of her head. 33.He said he put her down; then ran to Johana Kiprotich, and told him he had injured Karen. He told Johana they needed to get assistance to take her to hospital. He said he went to the parents of Karen but found the mzee (Karen’s father) was mlevi ( drunk) . He spoke to the mother who told him to leave because they (other relatives) would hurt him. He said he had the deceased’s phone. He said he went to a neighbour’s house where he slept till morning. 34.He said the following day the brother to Karen one Samuel Kiptoo rang him and told him that there was money in the phone that was needed to take the deceased to hospital. He said he told him to go to his brother Johana, and get money from him – then he went to his relatives at Solai. No one told him that Karen had died. 35.On 2/6/2020 – he was arrested by DCI Officers who told him that Karen had died. He said Karen hit him first – on the head, that they were both drunk. He said he and Karen had a sexual relationship and they had sex the previous night and that afternoon. He said his shirt became blood-stained at the scene. 36.He said he was not aware that her pants were blood stained. He said he approached the family of the deceased but they had not been receptive for reconciliation. He said he had the stick because he was looking for a cow. 37.On cross-examination by prosecution, he said that Karen was his lover. He confirmed that on 31/5/2020 he was with Karen and her sister Selin. He said they disagreed – it was around 6:00 pm, and he had injured her with a stick on the face – she fell and injured her head. He denied raping her after she fell. He said they had sex earlier. 38.He said he accepted that the injury she sustained out of the incident led to her death. He said that when he saw she was injured, he turned her to the side and ran home to report. He said he did not report to police. He said the mother of Johana told him to leave for his own safety. He said he just thought she was still drunk. He said he did not think the injuries were serious. 39.He said that the panty with semen must have been from their previous sexual intercourse. He said when he was unable to carry her, he ran home. 40.The defence closed and did not make any submissions. Analysis and Determination 41.From the foregoing, the issue is whether – the prosecution has proved the charge of murder against the accused. Section 203 as read with s. 206 of the Penal Code provides for the ingredients of murder. 42.These were set out by the Court of Appeal in Anthony Ndegwa Ngari -vs- R [2014] eKLR, as followsa.The death of the deceased occurred and its cause.b.That the death was caused by an unlawful act committed by the accused (actus reus).c.That the accused had malice aforethought (mens rea). 43.It is not denied by the accused person that he hit the deceased with a piece of stick. Selly the eye witness told the court that she saw the accused hit her sister with a stick. She fell down. Selly ran away. As she ran away she heard her sister say – forgive me. 44.The accused person gives his version on how incident happened. He says he hit her on the face – accidentally and she fell down on her back, and hit her head. The body exhibited multiple injuries – head, nervous system, spinal column and spinal cord – and internal decapitation with associated head injury. Hence the fall – if it was a fall must have been from a great force to lead to that kind of injury. The body also had multiple bodily injuries – abrasions, contusions on face, right upper back, chest, inner thighs – and lacerations of the left labia majora and minor, contusions on the forehead. there was a deep cut on the head at occipital parietal and behind the right ear – skull was exposed – so what really happened after Selly ran away? Selly says when she returned with 2 others, accused was having sex with deceased while she lay on the ground. 45.Pw5 confirms that when they found her, Karen did not have inner wear, and accused was seen leaving the scene. Pw4, 5, 6 testified that they found Karen in a state of undress suggestive of having been raped – she was found to have seminal fluid in her body – there is no other evidence other than that of accused that he had intercourse with her the previous night/ that day in the afternoon as he alleged – he told the court he was not living with her – that she was living at her parents’ home – he did not state where that would have taken place – and the evidence before me is that after Karen fell down, and Selly ran away, he proceeded to have sexual intercourse with her – while she lay bleeding on the ground – That explains the fact that she had been dragged into the forest, and was not lying on the roadside where she had fallen after he struck her. 46.There had been no disagreements prior to this day - no threats, no issues that witnesses can speak to – the only person who brought up a disagreement was the accused. There is no evidence that Karen struck the accused with a stone and though the accused told the court that he had a scar, when he appeared before the Psychiatrist on 27/7/2020 there was nothing in the report on his examination to show that he had sustained injury/ had any injuries on his body. 47.When he appeared before the Deputy Registrar on 4/6/2020 he did not have any complaints of injuries – and even Pw7, to whose house he went after the incident told the court that the blood on the accused was on his hands and clothes. That accused did not have any injuries on his body and none of the people he was with soon after the incident spoke to his having sustained any injuries. 48.Hence the accused person’s explanation that this was an accident following an altercation where Karen was the aggressor does not seem to add up. In addition, the body of Karen had multiple injuries other than the one that could be said to have resulted from a fall and these other injuries were not explained by the single fall that the accused says injured her head. 49.Ultimately I find that the kind of injuries that were sustained by Karen are suggestive of malice aforethought. 50.In the circumstances I find that the prosecution has established the charge of murder against the accused person, I find him guilty as charged and convict him accordingly. JUDGMENT DATED, SIGNED AND DELIVERED VIRTUALLY AT KABARNET HIGH COURT THIS 17TH DAY JULY 2026.MUMBUA T MATHEKAJUDGEIn the presence of:-CA Gladys/Momanyi.Accused Present.Mr Koech for State.Mr. Kiptoo for Accused.