[2023] KEHC 24159 (KLR)

Republic v Kirgoty (Criminal Case 1 of 2018) [2023] KEHC 24159 (KLR) (25 October 2023) (Judgment)

Neutral citation: [2023] KEHC 24159 (KLR)

Republic of Kenya

In the High Court at Kabarnet

Criminal Case 1 of 2018

RB Ngetich, J

October 25, 2023

Between

Republic

Prosecution

and

Orlando Kirgoty

Accused

Judgment

1. The accused Orlando Kirgoty has been charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars of the offence being that on or about the 30th December, 2017, at Salabani Sub-location in Baringo South Sub- County within Baringo County, murdered Naleyo Lekirigoti. Upon arraignment in court, he pleaded not guilty and a plea of not guilty was entered.

2. The accused person pleaded not guilty to the charge and the matter was set down for full trial with the prosecution calling twelve (12) witnesses in support of its case. Upon closure of prosecution case, the court found that prima facie case had been established to warrant accused be placed on his defence. The accused adduced sworn evidence in his defence.

Prosecution’s Evidence 3. Pw 1 one Jane Kirgotty testified that on the 30th December, 2017, at 4:00 p.m, she was at her home with Kenneth Neren, Mzee Kiseko neighbour and Orlando. She said her father Mzee Kirgotty had prepared traditional liquor and had called his children Kenneth and the accused Orlando to come and celebrate. She said her brother Kenneth arrived with his friend Kiseku. A lady neighbor who was uninvited found the celebrations going on and joined them which celebrations went up to 3:00 p.m. She said during the ceremony her father asked Orlando for monies given by his elder brother Simon for purposes of constructing a house.

4. She said after asking for the money, her father went to sit outside. She said the walking away by her father shocked the accused and she saw him hold his head with both hands; she asked him what was wrong, he did not response. She followed accused to see what he was doing and saw accused take a panga and sharpened it while outside. When he entered the house pw1 followed and found accused covering himself with a sheet over his body leaving only the eyes visible then went out. Pw1 said she struggled with the accused who was holding a panga while screaming. She said after about 10 minutes, he freed himself and started beating pw1 with sticks. She run to a neighbor’s house and fainted. When she regained consciousness at night, she was informed at around 10: 00 P.m. that accused had killed her father. She identified the panga had in court.

5. Pw 2 one Nerene Kirgotty the mother to accused testified that on the 30th December, 2017 at 4: 00P.M, she was at home together with her husband, Kenneth, Jane, Mzee Kisiekun, Orlando and Longimati where she found them taking Muratina outside the house under a shade. She said when she arrived, her husband asked accused money which he had been given by his brother but accused responded that it should be his brother asking for the money; then the deceased left the shade and went to sit outside his house. She said accused went for a panga, pushed her away and when she woke up, she found accused had cut his father on the neck. She said it was the 8th time the accused had attempted to kill his father. She confirmed that the panga accused used to cut her father belonged to pw1. she said accused is her 5th born son and she had no grudge with the accused.

6. Pw 3 one Mongitinuati Lebor testified that on 30th December, 2017, she was at deceased’s home to cut grass for thatching house when she saw pw1 and accused chasing each other and shortly thereafter, accused cut his father outside the house. She said she saw accused cut his father on the back of the head, on the neck, the leg and arm using a panga pw1 had been using to cut grass. She left the scene after accused cut the deceased.

7. Pw 4 one Jane Kasieku a neighbor to the deceased testified that she was present when the deceased started asking accused money sent to him. She confirmed that after the deceased had left to sit under a tree, the accused quarreled with pw1 and took the panga from pw1. She tried to intervene but accused told her it was a family matter. She left to her home and later heard screams. she went to the home. She saw the deceased lying dead while accused was not at home but was arrested the following day.

8. Pw 5 one Lerumpen Lemingoi Kirgotty testified that the following day he went to accused’s house and found a blood-stained panga at accused’s house under the children’s bed. He took it to deceased’s home; he said the bloodstained panga had white hair and black hair. He handed it over to elders.

9. Pw 6 one Kenneth Kirgotty testified that on the 30th December, 2017, he was at home with his brother the accused and his father the deceased herein. He said he had gone to sleep under a tree when he was woken up by armed people looking for accused; he found his father sleeping outside his house wrapped in a blanket and he did not know that he had died.

10. He testified that he ran and lifted the blanket and saw the body of his father with several cuts and the body was removed by police officers and village elders where the police then took away the body. He said the chief and the Assistant chief together with the villagers strategized on how to arrest the accused, He was traced and arrested at a Forest in Marigat. He identified the body of his father at the mortuary. He said the accused who is his younger brother got annoyed when their deceased father asked for money given to accused. He said the accused disappeared after killing his father and was arrested the following day about 20 kilometers away.

11. Pw 7 Abraham Rerimoi stated that on the 30th December, 2017, he was among the people who found accused in the forest in Marigat and arrested him after he had disappeared from his home. He said when he saw them, he dropped the panga he had and his shuka. He said they chased him and apprehended him and found him while wearing a white vest and white blood-stained shorts. They found police on the way and gave them a panga, the shuka and two mobile phones. They handed accused over to police and recorded statements.

12. Pw8 Julia Tabara stated that on the 30th December, 2017, at about 6: 00 p.m she was at her place of business when a young man called Leiso came and informed her that a drunk man was heading to the shop. She said the man followed her around the shop saying that he had killed someone and he could also kill her. She stated that although she had known the man for 10 years, she did not know his name. She said the man had a panga which he later used to cut the lower door of the shop and on seeing her, he started chasing her. She ran away and the man went back and cut the iron sheet of the shop. She said the man did not name the person he had killed. She stated that her phone rang in the shop and the man opened the door and entered the shop, he took the phone and two packets of milk and went away.

13. She said her mobile phone was make x-tigi and the man had a panga and two sticks. She said while outside the shop’s gate, the man removed his shorts and sat on his clothes and drank the milk. She said one Eresia went and told her to leave the man alone since he had killed someone. The witness identified the accused as the person whom she had seen in her shop with a panga. She said the deceased was her grandfather. She was recalled to court on the 23rd March, 2022 and she identified the panga the accused had in her shop.

14. Pw 9 John Tiren said he was among those who arrested the accused in a forest. He said the accused dropped two pangas and started running away when he saw them; they chased and got up with him and called police officers from Marigat who rearrested accused from them. He identified the two pangas in court.

15. Pw10 Dickson Lemilto a son to the deceased identified the deceased’s body to the Doctor Wangare Wambugu a pathologist at Baringo Referral Hospital who examined the body of the deceased and filled the post-mortem report. The doctor opined that the cause of death was acute head injury due to sharp force trauma following assault.

16. Pw 11 Esther Tabara testified that on the 30th December, 2017, at about 5: 00P.M, she was at home when accused who is a neighbor went to her house with a rope and took her phone and a bedsheet and went away. She said he went back later after he had killed and she never saw him again after leaving her home.

Accused’s Defence Case 17. The accused gave a sworn statement in defence. He said he did not intend to kill the deceased. He said on the 30th December, 2017, he went to remove charcoal and asked his wife to go and collect. His parents later called him with his brother and on reaching home, his father asked him to slaughter a goat as he was calling his children to celebrate and told him he was the one to serve alcohol. He said between 4 and 5 p.m, he requested to go and check on his children and after leaving home, his brother Ken called him. He went back. His father asked him to sit down and inquired from him how he had used Kshs.80,000/= send to him by his elder brother. He said he told his father the person who send him money is the right person to question him and confirmed to him that he was given Kshs.8,000/= and not 80,000/=.

18. He testified that he continued to tell his father that he bought iron sheets then his father took his walking stick and hit him; the walking stick pricked him and they struggled over the walking stick. He said his father tried to cut him but he used the walking stick to shield himself. He said his father moved behind trying to set himself up but he fell then accused took the panga and cut him on the head. He said he did not plan to cut him. He said he went to another location because there was tension.

19. The accused further stated that the following day, he went to the police station to report and while on his way, members of the public appeared and tied him up. He denied taking anyone’s bed sheet and it is not true that he covered himself with the bed sheet. He stated that the panga he used was for the deceased and the lady who was cutting grass had no grudge against him. He said he cut his father out of anger and after cutting him, he looked around and found everyone had left; he checked and realized that he had bled so much; he took his panga to his house and looked for his children to inform them what had happened but they were not there. He said he informed his brother and wherever he went, everyone ran away.

20. He further stated that his sister was present and she was using the deceased’s panga with the lady who was cutting grass. He said there were people at the scene when he was struggling with his father but no one tried to separate them. He said it is his father who started the fight and that his father’s walking stick had a metal at the end. He restated that he did not plan to kill his father and that it was his father who fought him and it was his brother was Kenneth who brought the whisky.

Submissions 21. Upon close of hearing, the prosecution informed the court that they did not wish to file written submissions but were relying on the evidence on record. The accused persons through their counsel on record informed the court that they did not also wish to file written submissions and would rely on written submissions in respect to the case to answer.

Analysis And Determination 22. The accused person is charged with the offence of murder contrary to section 203 as read with section 204 of Penal Code. Section 203 of Penal Code defines the offence of murder and requires proof of the following three elements proved beyond reasonable doubt,i.proof of death, the cause of that death,ii.proof that the death was due to an unlawful act or omission, that the unlawful act or omission was on the part of the suspectiii.and that the unlawful killing was with malice aforethought.

23. From evidence adduced it is not in dispute that the deceased died. All the prosecution witnesses testified that the deceased died on the night of the 30th December,2017; Dr. Wangare Wambugu confirmed that on the 5th January 2018, she conducted a post-mortem on the body of the deceased in Baringo County Hospital mortuary and on examination formed the opinion that the cause of death was acute head injury due to sharp force trauma following assault. She produced the post mortem report in court as exhibit.

24. From the evidence adduced there was direct evidence on how the deceased sustained fatal injuries. PW 1 to Pw 3 all saw the accused cut the deceased with a panga on the back of the head killing him on the spot. The accused also admitted that he killed the deceased his father but explained that he did not intend to kill and that it is his father who initiated the fight.

25. What is in issue is whether the accused had malice aforethought. Section 206 of the Penal Code provides: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 flight or escape from custody of any person who has committed or attempted to commit a felony.

26. For offence of murder, the prosecution is required to prove beyond reasonable doubt that the accused unlawfully caused the death of another by an unlawful act or omission with malice aforethought; meaning the accused had intention to kill.

27. It is not in dispute that there was an exchange between deceased and accused who were father and son respectively over money which had been given to accused by accused’s brother. It is not also disputed that the deceased, accused and their other relatives and neighbor who were at their home were drinking alcoholic drinks at the material time. Before the celebration started, evidence show that the deceased had called the accused and informed of the celebration and allocated him work to do during the celebration. At the time it did not appear as if there was any conflict or bad blood between the two.

28. Even though accused’s mother indicated that the accused had attempted to kill the deceased 7 times before, there is no evidence that he planned to kill him prior to inflicting fatal injuries on his father on the material day. It is confirmed that the weapon being a panga which the accused used belonged to his sister pw1. The accused however went overboard in his anger and inflicted serious injuries on his father. In my view, malice aforethought was not proved beyond reasonable doubt. I find accused guilty of the offence of manslaughter.

Final Orders: - 29. ...1. Accused is convicted of the offence of manslaughter contrary to section 202 as read with section 205 of the Penal Code.2. Right of appeal 14 days.

JUDGMENT DELIVERED, DATED AND SIGNED VIRTUALLY AT KABARNET THIS 25TH DAY OF OCTOBER, 2023. …………….……………………RACHEL NGETICHJUDGEIn the presence of:Mr. Elvis – Court Assistant.Accused present.Mr. Chebii for accused present.Ms Ratemo for State.