[2022] KEHC 15113 (KLR)

Republic v Leparkiom (Criminal Case 2 of 2018) [2022] KEHC 15113 (KLR) (10 November 2022) (Judgment)

Neutral citation: [2022] KEHC 15113 (KLR)

Republic of Kenya

In the High Court at Nyahururu

Criminal Case 2 of 2018

CM Kariuki, J

November 10, 2022

Between

Republic

Prosecution

and

Simon Ngamuran Leparkiom

Accused

Judgment

1. Simon Ngaruman Leparkiom, the accused person herein, was charged with the offence of murder contrary to Section 203 as read together with Section 204 of the Penal Code Cap 63 Laws of Kenya and the particulars as per Information dated 8th January 2018 signed by Elizabeth Maina, Prosecution Counsel are that on the 2nd day of January 2018 at Maundu Meri Sub- Location in Laikipia West Sub-County within Laikipia County, the accused person herein murdered Narkudala Leparkiom, the deceased herein.

2. The accused person pleaded not guilty to the charge.

3. The prosecution’s case was made up of 3 witnesses. Briefly, they presented their case as follows:-

4. PW1, George Makatae, Senior Assistant Chief Maundu-Meri Sub-Location, testified that on 2/11/2018 at 6. 30 pm, he received a text message from the chairman of Nyumba Kumi Community Policing, Ezekiel Sikuku notified him that brothers had killed each other. He went to the scene to find out what happened and found everybody had run away but found the deceased’s body. He confirmed that the brothers were not known to him.

5. He stated that he was told that the brother had killed the deceased, and they started looking for him and also called the police from Rumuruti. It was his testimony that he saw a house with iron sheets, then a grass-thatched house and goat shed. The body was between the two houses, outside the goat shed. That the deceased’s body- lying on the stomach. He saw blood, and there was an injury to the neck. He also saw 2 pieces of clubs and stated that he could only use them to hit a person nearby; it was twice the height of his hand, and one was bigger and the other smaller. That there was blood on the stalk.

6. It was his testimony that the police came and picked up the body and stick and found the accused in the sloped house after breaking in. That he had never seen the accused before.

7. In cross-examination, PW1 asserted that he had never been to the home where the deceased was murdered, and he did not know the owner of the home. That it was Ezekiel Sikuku, who called him and took him to the scene. That it was the accused’s uncle and the accused’s mother who told him that the accused had killed the brother. That the accused’s wife and mother witnessed the incident.

8. PW3, Cyrus Nganga Njoroge, Medical Officer, Nyahururu Hospital, produced the deceased’s postmortem report as P. Exhibit No. 1. He stated that he conducted the postmortem on 13/1/2018 at 4. 20 pm.

9. It was his testimony that he examined the deceased’s body and saw bruises on the face. On opening the head, he found below the skin there was a blood clot and evidence of trauma all over the head. There was multiple skull fracture. Inside the skull, on the train, there was blood in the brain (he bled inside the brain). He had a subdural hematoma that compressed the brain. The cause of death was severe head injuries causing a subdural hematoma.

10. PW4, No. 113299 PC David Ndege, investigating officer at Rumuruti Police Station, general crime investigations, testified that on 2/1/2019, he received a phone call from Sgt. Muhindi informing him of murder around the Maundu Meri area. He proceeded to the scene with IP Karani and, on the way, found the Assistant Chief, who took them to the scene.

11. They found the dead body lying on the ground, but there was nobody around. They also found a blood-stained log at the scene and a green Maasai also beside the body.

12. He stated that they were able to gather the information that the deceased quarreled with the brother Simon over the fact that the deceased had sold a rum without consent. They photographed the scene and carried the 2 exhibits.

13. Upon further investigations, they found the accused locked in his house, and they broke in and arrested him. He was found hiding under the bed. They found him wearing a brown leather jacket that had fresh blood.

14. It was his testimony that the body had visible injuries on the head, and blood was oozing from the front side of the body. That the skull had been crashed/ fractured, and a blunt object was used. That they could see the crash of the deceased’s head.

15. PW4 stated that they got the family members to record statements the following day but that the witnesses had migrated to an unknown location that they had not traced. On 6/4/2020, he wrote to the DCIO Laikipia West to trace them, but they had not done so to date. The witnesses are relatives of the accused, including his wife, brother, and mother, who witnessed the incident.

16. The bloody (dry blood) log was produced as P. Exhibit No. 2, the brown leather jacket was produced as P. Exhibit No. 3, the green leso was P. Exhibit No. 4, and the metal bar recovered at the scene was P. Exhibit No. 5. He stated that the photographs they took at the scene were not of use as they did not show anything since it was dark.

17. In cross-examination, PW4 stated that the eyewitnesses were family. That he recorded their statements. The statement of mother said that the quarrel between the accused and the deceased was over goats. That the accused confronted the deceased, and she left, but she heard a scream at home. She did not witness the incident.

18. That the wife of the accused stated in her statement that she went to look for sheep overnight, and upon returning in the morning, she learned of the killing of the deceased. She didn’t witness the incident.

19. The accused’s brother, in his statement, asserted that the deceased armed himself with a panga and threatened and raised an alarm. The accused came, and the 2 fought, and the accused hit the deceased with a metal rod on the head. The deceased was attacking his brother when the accused came to rescue him. That he was the only eyewitness to the incident.

20. At the close of the prosecution case, the Accused person was placed on his defence under Section 306 (2) of the Criminal Procedure Code.

21. DW1, Simon Ngamwai Leparkiom, the accused herein, who is the deceased’s brother, gave sworn testimony that on 2/1/2018, he went home from Rumuruti at 8 pm and found his brother and mother. He stated that he had a separate house, and his brothers stayed with his mother. That the brothers were quarreling over animals, and he told them to wait till morning when they could call the elders, then he went to sleep. It was between 9-10 pm.

22. That later, the police came and got him out of his house and arrested him. He was taken to the police station and denied killing his brother, but, He stated that it was not true that he was quarreling with his mother over animals, and he never wanted to beat his mother.

Analysis and Determination 23. Section 203 of the Penal Code provides that:“Any person who of malice aforethought causes the death of another person by an unlawful act or omission is guilty of murder.”

24. In the case of Joseph Githua Njuguna v Republic [2016] eKLR, the Court of Appeal outlined the ingredients of the offence of murder as follows:-“….Under section 203 of the Penal Code, any person who of malice aforethought, causes death of another person by an unlawful act or omission is guilty of murder. It is clear from this section that there are three elements that the prosecution must prove beyond a reasonable doubt to secure a conviction for the offence of murder. These are; (a) the death of the deceased and the cause of that death; (b) that the appellant committed the unlawful act which caused the death of the deceased; (c) and that the appellant had harboured malice aforethought.”

25. Additionally, in Republic v Andrew Omwenga (2009) eKLR the Court stated that:“It is clear from this definition that for an accused person convicted of murder, it must be proved that he caused the death of the deceased with malice aforethought by an unlawful act or omission. There are therefore three ingredients of murder which the prosecution must prove beyond reasonable doubt in order to secure a conviction. They are:a.The death of the deceased and the cause of that death.b.That the accused committed the unlawful act which caused the death of the deceased; andc.That the accused had the malice aforethought.

26. Section 107 (1) of the Evidence Act Cap 80 of the Laws of Kenya casts upon the prosecution the burden of proof to tender evidence to disapprove the innocence of an accused person . The section provides that:a.“(1)Whoever desires any court to give judgement as to any legal right or liability on the existence of facts which he asserts must prove those facts exists.b.When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.”

27. Accordingly, the prosecution bears the burden to prove that the offence was committed and the culprit is the accused person in the dock. That evidence by the prosecution must meet the threshold of beyond reasonable doubt and nothing less like fanciful and suspicious possibilities. It is not in dispute that the accused herein has been charged with the offence of murder contrary to Section 203 of the Penal Code and therefore, I shall subject him to the standard of proof illustrated above.

28. With respect to the fact of the deceased’s death and the cause of that death, it is not in doubt that Narkudala Leparkiom, the deceased herein, is dead. The death of the deceased was attested to by PW1 and PW4, who testified that they found the body of the deceased lying dead at the scene of the crime. The same was corroborated by PW3, who performed the postmortem on the deceased. PW3 established that the cause of death was severe head injuries causing a subdural hematoma.

29. Further, there is no doubt in my mind that the death of the deceased was caused by an unlawful act. PW1 testified that he saw a house with iron sheets, then a grass-thatched house and a goat shed. The body was between the two houses, outside the goat shed. That the deceased’s body- lying on the stomach. He saw blood, and there was an injury to the neck. He also saw 2 pieces of clubs and stated that he could only use it to hit a person nearby, it was twice the height of his hand, and one was bigger and the other smaller. That there was blood on the stalk.

30. Moreover, PW4, the investigating officer, testified that he found the dead body lying on the ground, but there was nobody around. He also found a blood-stained log at the scene and a green Maasai leso beside the body. That the body had visible injuries on the head, and blood was oozing from the front side of the body. That the skull had been crashed/ fractured, and a blunt object was used. That he could see the crash of the deceased’s head.

31. PW1 and PW3’s evidence was corroborated by the evidence of PW4, who stated that he examined the deceased’s body and saw bruises on the head. On opening the head, he found below the skin there was a blood clot and evidence of trauma all over the head. There was multiple skull fracture. Inside the skull, on the brain, there was blood in the brain (he bled indeed the brain. He had a subdural hematoma that compressed the brain.

32. That being the case, it is fundamental to then establish whether the accused occasioned the unlawful act that lead to the death of the deceased. The accused person is presumed innocent until the contrary is proved as clearly provided for under Article 50 (2) (a) of the Constitution.

33. PW1 testified that he was informed that the brother had killed the deceased. PW4 testified that he was able to gather the information that the deceased quarreled with the brother Simon over the fact that the deceased had sold a rum without consent.

34. Upon further investigations, they found the accused locked in his house, and they broke in and arrested him. He was found hiding under the bed. They found him wearing a brown leather jacket that had fresh blood and that is how the accused came to be charged of this crime.

35. Further, PW4 stated that he got the family members to record statements the following day but that the witnesses had migrated to an unknown location that they had not traced. On 6/4/2020, he wrote to the DCIO Laikipia West to trace them, but they had not done so to date. The witnesses are relatives of the accused, including his wife, brother, and mother, who witnessed the incident.

36. In cross-examination, PW4 stated that the eyewitnesses were family. That he recorded their statements. The statement of mother said that the quarrel between the accused and the deceased was over goats. That the accused confronted the deceased, and she left, but she heard a scream at home. She did not witness the incident.

37. That the wife of the accused stated in her statement that she went to look for sheep overnight, and upon returning in the morning, she learned of the killing of the deceased. She didn’t witness the incident.

38. The accused’s brother, in his statement, asserted that the deceased armed himself with a panga and threatened and raised an alarm. The accused came, and the 2 fought, and the accused hit the deceased with a metal rod on the head. The deceased was attacking his brother when the accused came to rescue him. That he was the only eyewitness to the incident.

39. The testimony of PW4 introduced persons who recorded statements on the circumstances that led to the deceased’s murder and the person that occasioned the murder but did not testify in court. The statements were, however, not produced in court but were alluded to therefore making it hearsay evidence. The witnesses were said to be the relatives of both the deceased and accused, i.e., the mother, the accused’s wife, and the accused’s brother; the latter is said to be an eyewitness to the incident. I must state at this point that none of these witnesses testified in court and what they said was hearsay evidence.

40. PW4 stated in court that he tried to get the family members to testify in court severally, but he was unable to for reason that they had migrated to an unknown location that they had not traced. He wrote to the DCIO Laikipia West to trace them, but they had not done so to date. The witnesses are relatives of the accused, including his wife, brother, and mother, who witnessed the incident.

41. That being said, the issue herein is whether the aforementioned evidence fits the exceptions to the hearsay rule, as the witnesses were not procured to give evidence.

42. Section 33 of the Evidence Act provides for exceptions to the hearsay rule when a witness is dead, unavailable, or can otherwise not be procured to give evidence. The section gives very specific instances when such a statement would be inadmissible. Since hearsay evidence is generally inadmissible, only the specific instances enumerated under that section permit the admission of statements by a deceased person as evidence.44. Section 33 of the Evidence Act Cap 80 Laws of Kenya on statements by persons who cannot be called as witness provides:Statements, written or oral or electronically recorded, of admissible facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence or whose attendance cannot be procured, or whose attendance cannot be procured, without an amount of delay or expense which in the circumstances of the case appears to the court unreasonable, are themselves admissible in the following cases —relating to cause of deathwhen the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question. Such statements are admissible whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question; made in the course of businesswhen the statement was made by such person in the ordinary course of business, and in particular when it consists of an entry or memorandum made by him in books or records kept in the ordinary course of business or in the discharge of professional duty; or of an acknowledgement written or signed by him of the receipt of money, goods, securities or property of any kind; or of a document used in commerce, written or signed by him, or of the date of a letter or other document usually dated, written or signed by him; against the interest of makerwhen the statement is against the pecuniary or proprietary interest of the person making it, or when, if true, it would expose him or would have exposed him to a criminal prosecution or to a suit for damages; an opinion as to public right or custom when the statement gives the opinion of any such person as to the existence of any public right or custom or matter of public or general interest, of the existence of which, if it existed, he would have been likely to be aware, and when such statement was made before any controversy as to such right, custom or matter had arisen; relating to existence of relationship when the statement relates to the existence of any relationship by blood, marriage, or adoption between persons at whose relationship by blood, marriage or adoption the person making the statement had special means of knowledge, and when the statement was made before the question in dispute was raised; relating to family affairswhen the statement relates to the existence of any relationship by blood, marriage or adoption between persons deceased, and is made in any will or deed relating to the affairs of the family to which any such deceased person belonged, or in any family pedigree or upon any tombstone, family portrait or other thing on which such statements are usually made, and when such statement was made before the question in dispute was raised; relating to a transaction creating or asserting, etc., a custom when the statement is contained in any deed or other document which relates to any such transaction as is mentioned in section 13(a); made by several persons and expressing feelings when the statement was made by a number of persons, and expressed feelings or impressions on their part relevant to the matter in question’’.

43. Additionally, the rules on the admissibility of hearsay evidence were enunciated in Kinyatti vs. Republic (1985) KLR 562, where the Court of Appeal held that the rule against hearsay is that a statement other than one made by a person while giving oral evidence in the proceedings is inadmissible as evidence of a stated fact. The Court went on to hold that the evidence of a statement made to a witness by a person who is not called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made. Therefore, evidence of the fact that the witnesses did talk with Wilfred is admissible on this account.

44. This court must also hinge its analysis of the same on the right to a fair hearing as provided for in Article 50 (2) (k) of the Constitution, which provides that every accused person has the right to a fair trial, which includes the right to adduce and challenge evidence. In the case of Ogeto v Republic [2004] 2 KLR 14 it was held:“It is trite law that a fact can be proved by the evidence of a single witness, although there is a need to test with the greatest care the identification evidence of such a witness, especially when it is shown that conditions favoring identification were difficult. Further, the court has to bear in mind that it is possible for a witness to be mistaken”.

45. It is my finding that this case does not fit within the exceptions in section 33 of the Evidence Act. Faced with a similar scenario, the Court of Appeal in the case of Dickson Mbeya Marende alias Dickie & another v Republic [2017] eKLR stated as follows:“We do not think that Nyakairu’s statement was admissible under section 33 of the Evidence Act. Neither did the statement relate to the cause of death of its maker, Nyakairu, nor did it relate to the circumstances of the transaction which resulted in Nyakairu’s death as per section 33(a). Equally, it was not a dying declaration. It did not also purport to identify the killers of the deceased. We would therefore agree with the appellants’ counsel’s submissions that the trial court ought not to have admitted it under section 33(a) of the Evidence Act.”

46. In the case of Republic v John Ng’ang’a Njeri [2018] eKLR, the court stated that:“The exact same reasoning applies in this case. The situation here is not covered by any of the sub-sections of section 33 of the Evidence Act. It is not, therefore, one of the permissible scenarios where hearsay evidence is admitted as evidence despite the dangers as to its unreliability due to lack of an opportunity to confront the maker of the statement.A different way of stating this is the following. For all scenarios where Parliament has not, by creating a statutory exception to the hearsay rule, it is assumed that admissibility of statements which will not be subjected to cross-examination or confrontation is per se prohibited as definitionally violative of Article 50(2) (k) of the Constitution.”

47. Accordingly, the law instructs that the court cannot rely on the statements made to the investigation officer and PW1 by the deceased’s relatives.

48. I, therefore, return to the question of whether the accused person occasioned the unlawful act that lead to the death of the deceased. From the evidence adduced by the prosecution, it is clear that there was no direct independent witness to the murder of the deceased. The prosecution case is solely based on circumstantial evidence.

49. In Kihungu v Republic [1984] KLR 648, O’kubasu J ruling on circumstantial evidence held: -“a. 1. Circumstantial evidence is very often the best evidence, and it cannot be impugned merely on the ground that it is circumstantial.”

50. The principles to be applied in considering such evidence are now well settled. In Mwangi v Republic [1983] KLR 522, the Judges of Appeal reiterated those principles and held: -“2. In a case depending exclusively on circumstantial evidence, the court must, before deciding upon a conviction, find that the inculpatory facts are incompatible with the innocence of the accused and incapable of explanation upon any other hypothesis than that of guilt. It is also necessary before drawing the inference of the accused’s guilt from the circumstantial evidence to be sure that there are no other co-existing circumstances which would weaken or destroy the inference…….”

51. The chain of events that led to the accused’s arrest suggests that there was a fight between his brothers, which he intervened to stop, but he ended up hitting the deceased and murdering him. The alleged blood-stained murder weapon was collected at the scene, and the accused was arrested in a leather jacket that had fresh blood stains. Both of these items were produced as evidence in court.

52. Nevertheless, no evidence was produced to link the accused to the weapon and also the blood stains in the leather jacket as belonging to the deceased, forensically or otherwise.

53. It is my finding that the prosecution did not tender any evidence that connects the accused to the crime of murder. Unfortunately, the attendance of material witnesses was not secured. This is a serious case in which human life was lost; unfortunately, witnesses can pull out of the case and fail to attend court. The undesirable outcome of the same is that there is a breakdown in ensuring that justice is served and law and order is maintained at all times. In an adversarial system such as ours, the court’s hands are tied in instances where parties fail to present evidence in support of their case. I must strictly confine myself to the admissible evidence that was presented during the trial.

54. Although the prosecution witnesses gave evidence that they heard that the accused killed the deceased and the alleged murder weapon and the accused leather jacket were produced in court, none of them could place the accused as the deceased’s assailant as the witnesses who told them were not availed in court. Their impression was based on hearsay. The inculpatory fact that the accused killed the deceased during a fight was not, therefore, proved, let alone beyond a reasonable doubt.

55. Accordingly, the inculpatory facts, in this case, do not prove beyond reasonable doubt that the accused person killed the deceased by an unlawful act and of malice aforethought. The prosecution’s evidence does not satisfy the legal requirement of circumstantial evidence to justify the conviction of the accused. There is nothing that connects the accused to the murder of the deceased. The prosecution failed in its duty to prove the case against the accused beyond a reasonable doubt.

56. In the upshot, I find that other than proving that the deceased’s cause of death was severe head injuries causing subdural hematoma, there is no proof that the injuries were inflicted by the accused person and that, therefore, he killed him. That being the case, there is no necessity to determine whether there was any malice aforethought.

57. Accordingly, this court makes the following orders;a.The court finds accused not guilty of murder and he is hereby acquitted and unless he is otherwise lawfully held, he shall be set at liberty.b.It is so ordered.

DATED, SIGNED, AND DELIVERED AT NYAHURURU THIS 10th DAY OF NOVEMBER, 2022. ………………………CHARLES KARIUKIJUDGE