[2023] KEHC 27385 (KLR)

Republic v Kipngeno (Criminal Case E011 of 2021) [2023] KEHC 27385 (KLR) (13 December 2023) (Ruling)

Neutral citation: [2023] KEHC 27385 (KLR)

Republic of Kenya

In the High Court at Nakuru

Criminal Case E011 of 2021

HI Ong'udi, J

December 13, 2023

Between

Republic

State

and

Robert Kipngeno

Accused

Ruling

1. Robert Kipngeno the accused stands charged with the offence of Murder contrary to section 203 as read with section 204 of the penal code. The particulars are that the accused on 21st day of January, 2021 at Sirikwa Location in Kuresoi north subcounty within Nakuru County, murdered Caroline Chepkirui.

2. The prosecution called a total of four (4) witnesses none of whom was an eye witness. The post mortem was conducted by Dr. Dorah Wangalia whose report was with the consent of both counsels produced by Dr. Rodger Namisi (PW4) on 30th November, 2023 as EXB1. The same is dated 28th January, 2021. A perusal of the report shows the following remarks:i.On external appearance of the body is indicated – No marks of traumaii.On internal appearance of the body from Item 2 – 8, It’s indicated – “Essentially normal” on each item.iii.On Item 1 which is the respiratory system it reads “Trachea, obvious food particles”.iv.The doctor therefore formed the opinion that “The cause of death was chocking secondary to food aspiration”.

3. Daniel Omido (PW1) of Sirikwa ward was in his house on 21st January, 2021 between 7pm-8pm when he was visited by the accused and the deceased. They left and went to the house of Emmanuel (PW2) to buy groundnuts. After a while he heard people fighting next to his gate. He went and found the deceased who told him she had been beaten/slapped and slightly strangled by the accused, for holding hands with Philip Ng’eno. She walked away slowly to her home. He did not hear anything until the next morning when he found her body outside his house. Later his house was burnt by angry members of the public.

4. Emmanuel Shikuku (PW2) is a brother to PW1 and they are neighbours at Sirikwa. It is his testimony that on 21st January, 2021 at 8pm the deceased came to his house and bought groundnuts and she left. Shortly thereafter he heard screams and he went to the gate and found the deceased who told him and PW1 that the accused had beaten her for finding her holding hands with Philip. He went back to his house. The next day they found the deceased’s body, outside PW1’s plot.

5. No. xxxxx C. I. Wilson Edwin Lomat formerly the officer in charge crime Kuresoi police station, testified that on 22nd January, 2021 he received a report of a murder. He went to the scene of the murder at Muthengi Village in Kuresoi accompanied by police driver P. C Songok. They found blood stains on the compound and it was his finding that the deceased was killed by her friend. That it was a love affair disagreement and the people concerned had been drinking in the homestead. There was blood on the door.

6. The above is a summary of the evidence that was presented before this court. It is the prosecution case that the accused and the deceased were living together as husband and wife. According to PW1 the deceased had left her family (husband and children) where she had come from. From the evidence by PW1 and PW2 the two brothers used to sell changaa as part of their business. They lived on the same compound with different houses but sharing one gate. It is at this common gate that the deceased was found seated, and the accused was nowhere to be seen yet he had been with her prior to this. In as much as the accused did not turn up to find out what was happening to his wife/lover would that be sufficient to find him culpable of the murder of the deceased?

7. The evidence by PW1, PW2 and PW3 as to what really happened does not tally at all with the results of the post mortem. (EXB 1). PW1 & PW2 who were with the deceased on the material night at the gate did not see any visible injury on her. The same goes for the doctor who did the post mortem. PW1 stated in her evidence saying:“She (deceased) said that the accused slapped her and strangled her a little bit”.On the other hand, PW2 stated thus: “She (deceased) was seated down. There was some light. I didn’t see anything else. She was holding her shoulder.”Further the investigating officer (PW3) had this to say: “The doctor said there was evidence of strangulation. I was present at the post mortem. The husband of the deceased was present though they had separated.”

8. This varied evidence by PW1, PW2 & PW3 could only have been pieced up together by the post mortem report. The evidence contained in the report (EXB1) does not support the said evidence at all. Instead it refers to food particles having been found in the deceased’s trachea causing chocking secondary to food aspiration.

9. PW1 & PW2 stated that when the deceased left their gate she headed to her home (accused’s house). Is there any evidence showing that the deceased reached the accused’s house and/or what happened to her on the way? All that PW1 stated is that after reporting the incident at the police station, they went to the accused’s house and found him. He told them the deceased never arrived home that night. There is therefore no evidence to show what exactly happened to the deceased after she left PW1’s & PW’2 gate besides the finding of her body outside PW1’s house.

10. This case is pegged on circumstantial evidence plus suspicion. The Court of Appeal in the case of SawevRepublic [2003] KLR 364 had the following to say on the above elementsi.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.ii.Circumstantial evidence can be a basis of a conviction only if there is no other existing circumstances weakening the chain of circumstances relied on.iii.The burden of proving facts which justify the drawing of this inference from the facts to the exclusion of any other reasonable hypothesis of innocence is on the prosecution. This burden always remains with the prosecution and never shifts to the accused.iv.Suspicion, however strong, cannot provide the basis of inferring guilt which must be proved by evidence beyond reasonable doubt.

11. I find that the circumstantial evidence before this court does not point out to the accused as the only person who may have committed this offence. It was the duty of the prosecution to lay before the court evidence pointing at the accused as the one and only person to the exclusion of everybody else, who could have committed this offence. This is an element that the prosecution has failed to prove. Placing the accused on his defence will amount to asking him to prove his innocence.

12. The accused will get the benefit of doubt and I hereinafter find him not guilty and acquit him under S306(1) of the Criminal Procedure Act. He shall be released forthwith unless otherwise lawfully held under a separate warrant.

Orders accordingly.

DELIVERED, DATED AND SIGNED THIS 13TH DAY OF DECEMBER, 2023 IN OPEN COURT AT NAKURU.H. I. ONG’UDIJUDGE