[2022] KEHC 15894 (KLR)

Republic v Limo (Criminal Case E040 of 2021) [2022] KEHC 15894 (KLR) (11 November 2022) (Judgment)

Neutral citation: [2022] KEHC 15894 (KLR)

Republic of Kenya

In the High Court at Kericho

Criminal Case E040 of 2021

AN Ongeri, J

November 11, 2022

Between

Republic

Prosecutor

and

Josphat Kibet Limo

Accused

Judgment

1. The accused person in this case, Josphat Kibet Limo(hereafter referred to as the accused person) was charged with murder contrary to section 203 as read with section 204 of the Penal Code.

2. The particulars of the charge are that on March 22, 2021 at Tabaita village Laliat sub-location in Kericho East subcounty within Kericho county the accused person murdered Jackson Kipkurui Maritim.

3. The accused person pleaded not guilty and he was represented at the trial by Koskei Advocate.

4. The prosecution called a total of 12 witnesses whose evidence in summary was on the material day PW1 Kiplangat Bii Enockwas at his house at Melita village, Ainamoi location when the deceased Jackson Kipkurui Maritimwho was his brother went to his house and asked for the accused person.

5. The deceased told PW1 that he had gone to the place the accused person was staying and he did not find him. The following morning PW1 heard screams and when he went to the place the screams were coming from, he saw the deceased lying down on the side of the road with a cut on his head and was being assisted by their mother.

6. PW1 said he assisted to take the deceased to Kericho District Hospital where he died. He said the murder weapon was not at the scene.

7. PW2 Kiprotich Mutaiwho also lives at Melita Village Ainamoi location said he was woken up by screams and he came out of his house and went to the place the screams were coming from.

8. PW2 said he found the mother of the deceased screaming and he also saw the deceased who had been cut on the head. The mother of the deceased told him it was the accused person who had cut him on the head.

9. PW3 Bernard Maritimwho is also a brother to the deceased said he is a teacher at Kapsoi Secondary School. He said on the material day at 9p.m he was at his house with his wife called Doris when the accused person joined them and they had supper together.

10. PW3 said the deceased went to his house and talked to the accused before and he left.PW3 also said his wife went to sleep with his mother and the accused person slept with him. As they were sleeping the deceased returned to his house and asked him to open the door.

11. When he opened the door the deceased entered his house and sat on the bed. He woke the accused person and asked him for his phone. The accused person said he did not have the phone.

12. The deceased told the accused person to go with him so that the witness who saw him take the phone would tell them how he took the phone.

13. PW3 said the two left his house and he went back to sleep. At 1a.m the accused person returned alone but he did not go to sleep. He took a panga and left.

14. PW3 asked the accused person why he was taking a panga and the accused person said he would return it. He said he wanted to put on a cardigan and that they were going to talk.

15. PW3 said he woke up and ran after the accused person. He called his wife and mother. Along the way he saw the deceased lying down by the road side and the panga the accused person had taken was lying nearby. The deceased had a cut at the back of his head. PW3 said the accused was not at the scene when he got there. He said they took the deceased to Kericho District Hospital where he died.

16. The following day he reported the matter to Kericho Police Station and he was referred to Ainamoi Police Station. The deceased’s phone was found in his pocket.

17. PW4 Joseah Langat who also stays at the same village said he was woken up by the screams and he went to the scene where he saw the deceased with a cut on his back. He saw a blood stained panga nearby.

18. PW3 Benard Maritimwas recalled to identify the panga found at the scene of crime. He said the panga belongs to him and that it was the one the accused person took from his house.

19. PW5, the Senior Chief of Poywek location said on March 22, 2021 at 6p.m he received a call from Samwel Mutaiwho told him that his brother the deceased had been cut by the accused person and he had died at Kericho County Referral Hospital.

20. PW5 arrested the accused person at his house at Tabaita village at 8 a.m on March 22, 2021 with the help of the police

21. PW6 Kipyegon Peter Maritimanother brother of the deceased he was asleep at his house at Poywek sub-location when his sister Chebet called him and told him the deceased had been injured.

22. PW6 went to see the deceased and he was told he had died. He said the accused person was arrested at the house of his neighbour.

23. PW7, the arresting officer said he arrested the accused person on March 23, 2021 at Kipkwes village and took him to Kericho DCI office where he was charged.

24. PW8 Lucy Toosaid she is also known as Ruth Busienei. She said she is the mother of the deceased. Said she was asleep at her house when she heard someone screaming. She went out of her house and saw the deceased lying down having been cut at the back of the head.

25. She said she tried to help the deceased. She covered him with a lesso and he was taken to hospital where he died.

26. PW 9 Doctor Wesley Rotichwho did the post mortem on the body of the deceased said he noted a stab fracture on the right parietal region extending to the occipital region measuring 20cm and the brain tissue was exposed.

27. The doctor formed the opinion the cause of death was severe head injury due to trauma to the head. He produced the post mortem report as an exhibit in this case.

28. PW10 Polycap Kweyuwho works at Kisumu Government Chemist as an analyst said he received the following items.1. Blood sample of the deceased marked “N”2. A blood stained panga marked “M”He was requested to do analysis and establish if there was any genetic relationship between the two items.

29. PW10 made the following findings.1. The blood stains on the panga marked “M” was the blood of a human being.2. He made a comparison of the two DNA profiles and found that the DNA generated from the blood stain on the panga marked “M” matched the DNA profile generated from the sample of the deceased marked “N”. PW10 produced the report as an exhibit.

30. PW11 Corporal David Kipchumbais the scenes of crime officer who visited the scene and took pictures at the scenes of crime and also pictures of the body which he produced as exhibits in this case (see bundle of pictures marked P. Exhibit – 5)

31. PW12 Corporal Wilfred Kipronoinvestigated the case and charged the accused with the offence of murder.

32. At the close of the prosecution case, the court found that the prosecution has established a prima facie case to warrant the accused person to be placed on his defence.

33. The accused person in his defence said that he was sixteen (16) years old when he was arrested and he was a student at Okoth school. He said on March 21, 2021, he went to church and returned home where he stayed with his father and siblings.

34. He said his mother died in 2016. He said his home is at Kipswes at Ainamoi. He said after church he returned home with his sister and two brothers.

35. The accused person said he took their cattle to the river and returned home and cooked dinner and they ate and went to sleep.

36. On Monday March 22, 2021, they took breakfast and he went to the river to fetch water when police went to his home and said he had hit the deceased.

37. The accused person said he does know the family of the deceased. He said he is a student and he does not know how to use a phone.

38. He said he was arrested and taken to Ainamoi Police Station and then to Nyagacho and to the Children Remand Home.

39. The defence filed written submissions and stated that in order for the prosecution to sustain a conviction they must prove all ingredients of murder.

40. The defence argued that the prosecution did not establish achain of causation proving that the accused murdered the deceased.

41. The defence argued that the prosecution failed to establish a nexus between his acts of commission or omission to the murder in question, they failed to prove that the accused was in possession of the panga which was found at the scene of crime.

42. Additionally, the prosecution did not procure the accused clothes which were supposedly tainted with the deceased’s blood.

43. The defence contended that the prosecution witnesses did not prove malice aforethought and cited the case of Roba Galma Wario v Republic(2015) eKLR.

44. The defence argued that in the instant case there was no direct evidence only circumstantial evidence linking the accused to the crime.

45. The defence argued that the circumstantial evidence did not form a chain of evidence to prove a crime of murder and failed the test of the ingredients of circumstantial evidence laid down in Chirangu &another v Republiccriminal appeal No 104 of 2018, Abanga alias Onyango v Republic criminal appeal No 32 of 1990 (UR), Sawe v Republic [2003] KLR 364.

46. I have considered the evidence adduced by the prosecution together with the submissions filed herein.

47. It is the duty of the prosecution to prove the guilt of the accused person and the standard of proof required is beyond reasonable doubt.

48. The issues for determination in this case are as follows:i.Whether the accused person unlawfully caused the death of the deceasedii.Whether there was malice afore thoughtiii.Whether the defence of alibi is available to the accused person.

49. On the issue as to whether the accused person unlawfully caused the death of the deceased, I find that the evidence against the accused person is circumstantial.

50. The principles that guide the court when considering circumstantial evidence are now well settled. The Court of Appeal case of RepublicvKipkering Arap Koskei &another (1949) 16 Eaca135 settled it all when it held: “That 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, and the burden of proving facts which justify the drawing of this inference from the facts to the exclusion of any reasonable hypothesis of innocence is always on the prosecution and never shifts to the accused.”

51. In the case of Ahamad Abolfathi Mohammedand another vRepublic [2018] eKLR, the Court of Appeal stated as follows on reliance on circumstantial evidence: “ circumstantial evidence is evidence which enables a court to deduce a particular fact from circumstances or facts that have been proved. Such evidence can form a strong basis for proving the guilt of an accused person just as direct evidence.”

52. Although there was no eye witness to the incident, the circumstantial evidence herein is watertight.

53. The accused person was seen by PW3 going away with the deceased from the house of PW3. The accused person returned and took the panga (P. Exhibit – 3) which belongs to PW3 and shortly afterwards PW3 found the deceased having been wounded and the blood stained panga was found at the scene and the accused person had escaped.

54. I find that the evidence of the Government Analyst (PW10) confirms that the blood on the panga is that of the deceased.

55. The doctor who conducted the post mortem said the cause of death was severe head injury due to trauma to the head by a sharp object.

56. I find that there is evidence that it is the accused person who inflicted the fatal injuries on the deceased.

57. On the issue as to whether there was malice aforethought, section 206 of the Penal Code defines malice aforethought in the following terms:(a).An intention to cause death or to do grievous harm to any person whether such person is the person actually killed or not.(b).Knowledge that the act or omission causing death will cause the death of or grievous harm to some person, whether such person is the person 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 be caused.(c).An intent to commit a felony.(d).An intention to facilitate the escape from custody of a person who has committed a felony.”

58. There are numerous authorities covering manifestation of malice aforethought in homicide cases on the charge under section 203 of the Penal Code. For the offence of murder and proof of malice aforethought in RexvTubere S/o Ochen{1945} 1Z EACA 63, East African Court of Appeal observed: “In determining existence or nonexistence of malice one has to look at the facts proving the weapon used, the manner in which it is used and part of the body injured.”

59. I find that there is evidence that after the accused person had been called by the deceased over allegations that the accused person was in possession of the deceased’s phone, the accused person went back to the house of PW3 and armed himself with PW3’s panga and went and inflicted injuries on the deceased.

60. Although no one saw the accused person the circumstantial evidence is watertight and leads to the inference that it was the accused person and no one else that inflicted the fatal injuries on the deceased.

61. I find that the prosecution has established that there was malice aforethought.

62. On the issue as to whether the defence of alibi is available to the accused person, I find that the accused person during the hearing raised analibi defence.

63. The accused person said he was with his father and siblings at Kipswes village at Ainamoi and not at the scene of crime.

64. It is trite law that when an accused person pleads an alibi, the burden of proving the falsity, if at all, of the defence of alibi lies with the prosecution.

65. In KiarievRepublic[1984] KLR, the Court of Appeal stated that: “An alibi raises a specific defence and an accused person who puts forward an alibi as an answer to a charge does not in law thereby assume any burden of proving that answer and it is sufficient if an alibi introduces into the mind of a court a doubt that is not unreasonable…”

66. In the case of Victor Mwendwa Mulinge vRepublic[2014] eKLR the Court of Appeal rendered itself thus on the issue ofalibi: “It is trite law that the burden of proving the falsity, if at all, of an accused’s defence of alibi lies on the prosecution...”

67. I find that the accused person’s alibi defence does not displace the prosecution evidence.

68. I find that there is evidence that placed the accused person at the scene of crime and his alibi is an afterthought which was raised at the tail end of the case.

69. I find that the prosecution has established the guilt of the accused person to the required standard in criminal cases. His defence is a mere denial.

70. I find the accused person guilty as charged.

DELIVERED, DATED AND SIGNED AT KERICHO THIS 11TH DAY OF NOVEMBER, 2022A. N. ONGERIJUDGE