[2023] KEHC 25537 (KLR)

Republic v Kiptanui & 3 others (Criminal Case E070 of 2021) [2023] KEHC 25537 (KLR) (21 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25537 (KLR)

Republic of Kenya

In the High Court at Kapsabet

Criminal Case E070 of 2021

JR Karanja, J

November 21, 2023

Between

Republic

Prosecution

and

Festus Kiptanui

1st Accused

Kennedy Kipkering

2nd Accused

Evans Kiptum

3rd Accused

Felix Tirop

4th Accused

Judgment

1. Festus Kiptanui (First Accused) together with Kenney Kipkering, Evans Kiptum and Felix Tirop (Second, Third and Fourth Accused respectively) are jointly charged with Murder Contrary to Section 203 as read with Section 204 of the Penal code.The particulars of the charge are that on the 24th July 2015 at 11:00hours at Eisero Village Kabisaga Location within Nandi County the four Accused jointly murdered Elvis Kiplagat (Deceased).

2. The case for the prosecution arose from the facts that the deceased, son to Mary Cheptleting Sang (PW1) was on the material date at about 10:00am left at home as his mother proceeded to visit her sister. At about 3:00pm the mother received a call from her brother and informed that the deceased had been beaten by some people. She proceeded to the scene and found the deceased on the ground having been beaten and injured. He had no clothes and was taken to Kabiyet Hospital by an ambulance.

3. At Kabiyet Hospital the deceased was referred to Kapsabet and in the process he allegedly mentioned to his mother (PW1) that he was attacked and assaulted on allegation of having stolen beer and a phone by people who included the four Accused. A doctor asked them to write down the names of the suspects before the deceased’s mother left him in the hospital with her brother called Isaac. It was on the following day that the mother learnt that the deceased had died from his injuries.

4. Solomon Rotich (PW2), was on the material date cutting trees in his homestead when his attention was drawn to screams in the neighbourhood. He rushed to the scene and found a group of about forty (40) people assaulting the deceased using canes. He recognized the four Accuseds as being part of the group. He knew them as his neighbours with the fourth Accused being his uncle.

5. An Electrician, Reuben Kiprop Rotich (PW3), was also attracted by screams emanating from the local centre on that material date in the forenoon. He rushed there and heard from one Isaac Rotich that the deceased was being beaten inside a maize plantation. He went to the plantation and found the deceased, he nephew, half naked and being beaten with canes by people who included the four Accused.

6. Dr. Wekesa Nalianya (PW4), a pathologist at the Moi Teaching and Referral Hospital (MTRH) performed an autopsy on the body of the deceased and compiled the necessary postmortem report (P.EX. 2) indicating that the deceased died from severe subcutaneous haemorrage as a result of beatings (assault).Susan Rotich (PW5), was at her home when she heard screams and proceeded to the scene where she found the deceased naked and being beaten by a group of people using sticks. She recognized the Second Accused as being part of the group.

7. The incident was reported to the police at Kabiyet and CPL. Simon Sopia (PW6) of the Directorate of Criminal Investigations (DCI) Nandi North took over the investigations of the case. He visited the material scene at Eisero shopping centre and gathered that the deceased had been apprehended by members of the public after having broken into a bar belonging to the second Accused. Several pieces of wooden sticks (P. EX 1) were found at the scene.

8. On completion of his investigations, CPL Sopia (PW6) forwarded his file to the Office of the Director of Public Prosecution (DPP). Thereafter, he arrested and charged the four Accused with the present offence. They all denied the charge and implied in their respective defence that they were implicated without good cause.

9. The first Accused (Festus) indicated that he was at home on the material date when a Village Elder notified him that the police were looking for him. He proceeded to Kabiyet Police Station at a later stage and was informed that he had assaulted somebody. He contended that he was not at the scene of the offence at the material time.The second Accused (Kennedy) indicated that he was at his farm upto lunch time when he proceeded to Kapsaga Centre. At 6:00pm he was informed that the deceased had been fatality assaulted. He was summoned by the police three months after the offence. He proceeded to the police station and was arrested.

10. The third Accused (Evans) indicated that he was grazing his cattle on the material date. He did so upto 6:00pm when he proceeded to the local trading cetre where he learnt that the deceased had been assaulted by a group of villagers. He was not at the scene at the material time.The forth Accused (Felix) indicated that he was a tractor driver and was at home when police officer arrived there and arrested him saying that a person had been assaulted three months ago. The said person was the deceased whom he knew.

11. Basically, the foregoing evidential fact from both the prosecution and the defence do not raise any dispute with regard to the fact that the Accused was suspected of having been a thief and assaulted by a mob of people who clearly and intentionally subjected him to what is commonly referred as “mob justice” rather than “mob injustice”. The assault with the use of wooden sticks or canes resulted in the deceased suffering fatal injuries as was established by the evidence of the pathologist. (PW4).

12. The cause of death was thus not disputed. The dispute was with regard to the identification of those who administered the unlawful act of assault upon the deceased thereby leading to his demise. Indeed, the defence raised by each of the Accused implied that they did not take part in the unlawful act and could not therefore have been part of the mob which assaulted and fatality injured the deceased. They all raised alibis in their respective defence or implied as much.

13. The unlawful act was executed by a mob of people in broad day light therefore providing favourable conditions for identification and/ or recognition of some of the people who participated in the mob injustice against the deceased. Towards that end, the prosecution evidence of identification against the Accused came from the deceased’s mother (PW1), the farmer Solomon (PW2), the electrician Reuben (PW3) and Susan (PW5). Coincidentally, PW2, PW3 and PW5 share the surname “Rotich”.

14. Whereas the evidence of the deceased’s mother (PW1) was more or less anchored on a supposed dying declaration, the evidence of PW2, PW3 and PW5 was clearly direct evidence of identification against the four Accused indicating that they were seen at the scene of the offence in the act of assaulting the deceased in conjunction with others on the material date and time. This had the effect of placing them at the scene of the offence contrary to what they indicated in their defence thereby disproving their respective alibi.

15. In that regard, all the four Accused were identified by Solomon (PW2) and Reuben (PW3) as having been part of the group of people who assaulted and fatally injured the deceased Susan (PW5) identified the Second Accused only. It may therefore be safely stated that the prosecution provided corroborative evidence of identification against the Accused Persons. The question, however, would be whether that evidence was credible and reliable enough to establish positive identification of the Accused as being part of the group of Offenders.

16. There was nothing in the examination of the identifying witnesses, whether examination in chief or cross-examination, to suggest that their respective evidence was wanting in credibility. Granted, the evidence contained some minor contradictions and inconsistency which did not however, waterdown their credibility on identification of the four Accused. It is therefore the holding of this court that the prosecution evidence of identification against the Accused was not only cogent but also credible and reliable enough for a finding that they were positively identified as being part of the mob of people who assaulted and caused fatal injuries upon the deceased.

17. As for the evidence of the mother of the deceased (PW1), it was insufficient for purposes of positively identifying the four Accused or any other person as the persons responsible for assaulting and fatally injuring the deceased. More so, considering that the evidence was largely based on what was clearly hearsay and the alleged, hitherto unsupported dying declaration.It is highly doubtful whether such a declaration was made considering that it was only the mother of the deceased (PW1) who allegedly heard what the deceased was saying, yet she was in the presence of other people who could also have heard the declaration and testified to that effect in support of the witness (PW1).

18. The failure of these other people to testify inferred that no such dying declaration was made by the deceased to the witness (PW1) or that the witness allowed her imagination to run away with her due to the hurt she felt on seeing her injured son in that sorry state, thanks to her fellow villagers and/ or neighbours.Those other people who were vital witnesses but were not called to testify included a doctor who allegedly directed that the names of the suspects be written down and one Isaac Rotich who was with the witness (PW1) most of the time and who was left with the deceased at the hospital.

19. It would therefore follow that it is on the basis of the evidence of Solomon (PW2), Reuben (PW3) and Susan (PW5) that the four Accused are hereby found criminally responsible for the death of the deceased. However, it is apparent that the intention of the assailants was not to cause the death of the deceased but to “punish” him for his perceived crime of breaking into and stealing from a bar. In so doing, they took the law in to their own hands and ended up killing the deceased with the use of excessive force. They must therefore be held responsible for the consequences of their unlawful action.

20. In the absence of malice aforethought this court must hold that the prosecution has proved beyond reasonable doubt the lesser charge of manslaughter against the four Accused. They are therefore found guilty of the offence of manslaughter, contrary to Section 202 of the Penal Code and are convicted accordingly.

DELIVERED AND DATED THIS 21ST DAY OF NOVEMBER, 2023. J. R. KARANJAH,JUDGE