[2022] KEHC 3103 (KLR)

Republic v Kiplangat & another (Criminal Case 80 of 2014) [2022] KEHC 3103 (KLR) (5 May 2022) (Ruling)

Neutral citation: [2022] KEHC 3103 (KLR)

Republic of Kenya

In the High Court at Nakuru

Criminal Case 80 of 2014

TM Matheka, J

May 5, 2022

Between

Republic

Prosecution

and

Weldon Ngetich Kiplangat

1st Accused

Joan Chepkemoi Rotich

2nd Accused

Ruling

1. Weldon Ngetich Kiplangat and Joan Chepkemoi Rotich the 1st and 2nd accused persons respectively are jointly charged with the offence of murder contrary to Section of 203 as read with Section 204 of the Penal Code. The particulars are that on the 30th June 2014 at Sirikwa Area in Kuresoi District within Nakuru County, the two accused persons jointly murdered Brian Kiprono Rotich.

2. On 29th September, 2016 the two denied committing the offence and in the full trial the prosecution called eight (8) witnesses to prove their case.

3. PW1, Solomon Kipkurui Rotich, a brother to the deceased, recalled that on 20th June 2014 at 11. 00pm while at home in Subukia, he received a phone call from the deceased’s friend one Vincent alias Lemoi saying that the deceased had left home at 8. 00 p.m. and could not be traced. He tried calling the deceased on both his Airtel and Safaricom numbers but he was unreachable. He then called the deceased’s wife, the 2nd accused herein, who informed him that the deceased had gone home at 8. 00p.m, collected a Panga and left. He called his neighbor Lucas Sawe who accompanied him to the deceased’s house where they only found his wife. They searched for the deceased the whole night in vain. The next day they found his body in a farm of one Belsoi with cuts on the head and neck. His sweater which was white had blood. Police from Sirikwa Police Station came and took away the body. He later identified the body for postmortem. He said he did not know who killed the deceased but suspected the two accused persons because it was alleged that they had an affair.

4. On cross examination he said he found the 2nd accused wife of deceased in the home. He said she had not run away and she did not run away neither did she look like she wanted to run away. The 1st accused was found sleeping in his house that night when they went looking for deceased. The panga was never recovered.

5. PW2, Lucas Sawe Kiprop, testified that on the material night he was phoned by the wife of the deceased about midnight telling him that he had left home and had not returned. Together with PW1 they went looking for the deceased. They even woke up the 1st accused among other neighbours who told them that he had not seen the deceased. He testified that the next day at 11:00am they found the body of the deceased in the farm of one Belsoi near the quarry with deep cuts on face and neck . He said there was no blood around him and his white sweater had only blood stains.

6. On cross examination he said that the last person he saw with the deceased was one Vincent. That Belsoi’s shamba was about 1. 5km away from home of the deceased. That PW2’s home was nearer that of the deceased than that of the 1st accused.

7. PW3, Richard Cheruyot, testified that on 30th July 2014 at 10. 00a.m he was at a group farmers meeting until 7:00pm in company of Vincent Mutai and the deceased. That Vincent left with the deceased and he PW3 remained in his shop up to 8. 00pm then went home. At 1. 00am, PW2 called him saying that the deceased could not be traced and requested for his assistance to search for him. They did search for him in vain. The following day they found his body at Belio’s farm. He confirmed he saw his body which had cuts on the head and the neck. He stated that there as no blood at the scene and even the white sweater te deceased wore was not blood stained. He said he did not know who had killed the deceased,

8. On cross examination he said that the 2nd Accused was involved in the search for her husband, that Vincent was the last person to be seen with the deceased,

9. PW4, Daniel Arap Korir, father to the deceased testified that on 30. 6.2014 at 8. 00pm while at home he heard the deceased asking his wife for a panga. He inquired from the deceased why he wanted a panga but he did not respond. He said the deceased took a panga and left. The following day he learnt of his death. He visited the scene and saw the deceased body with severe cut wounds on the head. He said the head was almost severed. That the wife of the deceased was at home. He said the deceased and his wife the 2nd accused lived in his (PW4’s) home. He was not aware of any disagreements between the deceased and his wife. He also said that the wife of the deceased was always starting problems but he never got involved in their quarrels. He said he did not know the other accused person.

10. PW5, No. 50594 Sgt Wilson Otieno Aduda, recalled on 1st July 2014 he received a call from the assistant chief Alan Mwangi that a man had been murdered at Kaptembwa Village. He went to the scene and found a crowd gathered next to the deceased’s body. He noted that deceased body had deep cuts on the head and the neck. It appeared to him as though the deceased had been killed elsewhere and body dumped there. He called crime personnel who came to the scene and took photographs then they moved the deceased’s body to Molo District Mortuary. He inquired as to who was last seen with the deceased. He recorded statements . He later learnt that two suspects had been arrested.

11. PW6,No. 230911 Senior Supt Jackson Makau Kieti recalled that on 30th June 2014 murder case was reported at Sirikwa Police Station and accused persons herein were arrested in connection with the murder as it was alleged that they were friends and had conspired to kill him. He testified that he was told by the Investigating Officer Cpl Wanjohi that the wife of the deceased was ready to disclose some relevant information. He decided it was a confession and recorded the same. His attempt to produce it led to a trial within trial.

12. I took over the matter when it was pending Ruling as to whether the confession was admissible or not against the 2nd accused. It is noteworthy that the confession was rejected by this court vide its ruling of 8th December 2021. I then heard two witnesses, the Pathologist and the Investigation Officer.

13. PW7,Dr. Sammy Gituku, testified that on 4th July 2014 he conducted a postmortem examination on the body of the deceased at Molo Hospital. Externally he noted deep cuts wounds on head and neck especially on right side of neck. Internally he noted right carotid artery and right jugular vein were transected (severed), deep cut on right parietal region measuring 7cm, deep cut wound on the anterior (right) side of neck, spinal column was fractured at second vertebrae & spinal cord was intact. He said the cuts on the deceased’s body were caused by a sharp object and opined that the cause of death was as a result of severe hemorrhage and shock due to the cut wounds on the neck. He produced the post mortem report as P. Exhibit 1.

14. PW8, Sgt. Harrison Wanjohi, testified that information reached the police that the villagers were saying that the wife of the deceased and the 1st accused could have arranged to kill the deceased because they were having an affair. That when he interrogated her she began to confess and he handed her over to PW6 for the recording of a confession. That the accused persons were charged on the basis of the said confession. On cross examination he said that there was an informer who reported the alleged affair, to the effect that the two accused had a child together. That no DNA was conducted on the child alleged to have been born between the two accused persons to confirm the paternity and therefore the alleged affair.

15. The prosecution closed its case.

16. Mr. Maragia counsel for the 1st accused person submitted that the basis of the arrest of the two accused persons was information from an informer. That the defence was questioning the authenticity of the information. That the police did nothing to verify the said information by conducting DNA on the child alleged to have been born out of the alleged affair. That that alone rendered the information incredible. That there was no direct evidence other than the confession to connect the accused persons to the murder.

17. Ms. Chemng’etich adopted Mr. Maragia’s submission and added that the investigation officer had stated that the basis of the charge was the confession which had been found inadmissible by this court.

18. The prosecution chose to rely on the evidence on record.

19. The issue for determination is whether based on evidence tendered be the prosecution, there is sufficient basis to place the accused persons on their defence.

20. Section 306 (1) and (2) of the Criminal Procedure Code[Cap 75] laws of Kenya provide the basis for this.“(1)When the evidence of the witnesses for the prosecution has been concluded, the court, if it considers that there is no evidence that the accused or any one of several accused committed the offence shall, after hearing, if necessary, any arguments which the advocate for the prosecution or the defence may desire to submit, record a finding of not guilty.(2)When the evidence of the witnesses for the prosecution has been concluded, the court, if it considers that there is evidence that the accused person or any one or more of several accused persons committed the offence, shall inform each such accused person of his right to address the court, either personally or by his advocate (if any), to give evidence on his own behalf, or to make an unsworn statement, and to call witnesses in his defence, and in all cases shall require him or his advocate (if any) to state whether it is intended to call any witnesses as to fact other than the accused person himself; and upon being informed thereof, the judge shall record the fact.”

21. The meaning of a what constitutes a prima facie case is well settled in Bhatt vs Republic[1957] EA 332 – 335 where the Court of Appeal stated as follows:“Remembering that the legal onus is always on the prosecution to prove its case beyond reasonable doubt, we cannot agree that a prima facie case is made out if, at the close of the prosecution, the case is merely one, which on full consideration might possibly be thought sufficient to sustain a conviction… Nor can we agree that the question whether there is a case to answer depends only on whether there is some evidence, irrespective of its credibility or weight, sufficient to put the accused on his defence. A mere scintilla of evidence can never be enough, nor can any amount of worthless discredited evidence. It may not be easy to define what is meant by a prima facie, but at least it must mean one on which a reasonable tribunal, properly directing its mind to the law and the evidence could convict if no explanation is offered by the defence.” (emphasis added)

22. 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.”

23. In order to sustain a conviction, the prosecution must establish: -i.That the person subject of the charge is dead;ii.That the death was caused unlawfully;iii.That there was malice aforethought; andiv.That the Accused person directly or indirectly participated in the commission of the alleged offence.

24. Section 206 of the Penal Code 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; an intent to commit a felony; 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.”

25. It is not in dispute that there was death. The post mortem report indicates that the cause of death was as a result of severe hemorrhage and shock due to the cut wounds on the neck. Neither is there doubt that the death was by unlawful means. Someone used a sharp object to cut the cut the deceased’s neck leading to the severing of both his jugular and carotid veins causing severe loss of blood and death.

26. The question is whether there is any evidence on the face of this case to connect the two accused with the murder. The record shows that each of the five witnesses who are related to both the 2nd accused and the deceased told the court they did not know who killed the deceased. On the material night the two accused persons were each in their homes. The father to the deceased confirmed that the 2nd accused was left at home by the husband (deceased) on the material night, when took a panga and left for an unknown destination. During the search for the deceased, the witnesses went to house of the 1st accused and found him sleeping. Nothing suspicious was mentioned either about the 1st or the 2nd accused.

27. When the body of the deceased was found there is no evidence that any investigation was conducted to find out where he could have gone after he left his house armed with a panga at 8:00pm the previous night. The last people to be seen with him were not interrogated to find out whether he had told them anything about what might have led to his arming himself and leaving the home that night. There was no search conducted in home or homestead of the 1st accused. The children of the 2nd accused were also not interrogated. In short no investigation was conducted in this matter.

28. Suspicion alone cannot be the basis upon which the prosecution can expect to establish a prima facie case.

29. It is in Joan Chebichii Sawe vs Republic [2003] eKLR that the Court of Appeal stated:“In our judgment, the evidence does not satisfy the legal requirements of circumstantial evidence to warrant or justify the conviction of the appellant on the basis of the evidence on the record. We are, therefore, unable to uphold the conviction entered by the learned trial judge. We have evaluated the evidence as we are entitled to at great length and there is really nothing left to connect the appellant with the death of the deceased except mere suspicion. The suspicion may be strong but this is a game with clear and settled rules of engagement. The prosecution must prove the case against the accused beyond any reasonable doubt. As this Court made clear in the case of Mary Wanjiku Gichira v Republic (Criminal Appeal No 17 of 1998) (unreported), suspicion however strong, cannot provide a basis for inferring guilt which must be proved by evidence. We disagree with the learned judge’s view that the prosecution had proved its case against the appellant beyond any reasonable doubt.”

30. This case falls in the same category as the case cited above. Herein the prosecution has not placed before me even a scintilla of evidence that the two accused persons either jointly or each by themselves did anything to be connected with the death of the deceased herein.

31. It is unfortunate that this matter has remained in the criminal justice system for 8 years during which period the 2nd accused was in remand custody because she could not raise the bond terms. until I reviewed her bond terms to allow her mother who is a cook in the local primary school to stand surety for her with her National ID, her photo, letter from her employer and from the Chief.

32. In the meantime, the accused’s children were shared out among relatives and even getting their views for the bail review information was an uphill task as the relatives to the deceased who have custody of the children did not want to give access even to the Probation Officer.

33. The case is a classic example of how the community and family can try and convict a suspect in their own way without evidence and sentence them to punishments of their own design.

34. That said I have expressed the considered view that that no evidence has been placed before the court to warrant the accused persons being put on their defence.

35. I proceed under Section 306 (1) of the Criminal Procedure Codeto record a finding of not guilty, to dismiss the charge of murder and acquit each accused persons accordingly.

36. Each surety is discharged.

DATED, SIGNED AND DELIVERED VIRTUALLY THIS 5TH DAY OF MAY, 2022. MUMBUA T MATHEKAJUDGEIn the presence of;CA EdnaAccused persons presentMr. Kihara for the stateMr. Maragia for the 1st AccusedMs. Chemngetich for the 2nd Accused