[2017] KEHC 3257 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYAAT NANYUKI

CRIMINAL CASE NO. 8 OF 2016

REPUBLIC…………………………....……....……..PROSECUTOR

VERSUS

LT SOISON STEPHEN NTUKAI ……...........……………. 1st ACCUSED

PATIREE LOKUIYE FRANCIS ………………............….. 2nd ACCUSED

JUDGMENT

1. N Y (the deceased)from the pastoralist community was a school girl aged 16 years. She was attending [particulars withheld] school at class eight. Her father K Y (P W 1) described her as a good and well behaved girl.

2. LTSOISON STEPHEN NTUKAI (1st Accused ) and PATIREE LOKUIYE FRANCIS are charged with the offence murder of N Y, the deceased, Contrary to Section 203 as read with Section 204 of the Penal Code.They both pleaded not guilty.

3. The Prosecution’s evidence was that the deceased on 16th May, 2012 arrived at home from school. She met her father (P W 1) and greeted him. After changing from her school uniform the deceased left the homestead to look for firewood. She went to fetch firewood at the request of her mother S J L (P W 9). Deceased took with her a simis (panga) an axe and a white nylon sack.

4. On that day between 4. 30 and 5p.m both accused were seen by T L S ( P W 2) and by J M L

(P W 7) in the company of the deceased. P W 2 was on that day driving his animal, that he had been herding, back home. On his way home he met both the accused with the deceased. This is what he said.

“I found them on the way home. It was near [the] boma of Nayiiana deceased. They were just standing. I did not hear what they were saying but I could see they were talking”.

5. P W 7 was on the material date a student at [particulars withheld] Secondary School at Form I. At 5p.m he was on the way from [particulars withheld] Secondary School when he saw the two accused in the company of the deceased. He said in evidence:

“I saw Ltsoison (1st accused) and Patiree (2nd accused) and Nayiiana (deceased). They were by the road side talking. I saw them standing the three of them. They were talking ……. I passed them from about 15 meters”.

6. S L ( P W 6) brother of the deceased on 16th May, 2012 while on his way home from Kimanjo center, at 5p.m, he met his sister, the deceased. She was near their homestead. He noticed deceased had a sack which she normally used to put firewood. He also noted that she had an axe. He noted deceased was collecting firewood. He greeted her. On his way he also came across the two accused. The two accused were eating Miraa (khat) while up a tree. P W 6 greeted them but they rudely rebuffed his greetings saying, “What do you want from us, go away”.P W 6 noted that the deceased, as she collected firewood, she was going in the direction where both accused were. The deceased was half a kilometre away from the accused but P W 6 said:

“Yes the accused could see the deceased where she was”.

7. P W 9mother of the deceased in evidence said that on 16th May, 2012 at 4p.m as she was herding her goats she saw both accused persons at the dry river bed. They were sitting there. P W 9 was able to describe the clothes both accused were wearing. She said that it was at that dry river bed where they normally got firewood from. She further stated that the deceased passed the river bed when she went to collect firewood.

P W 2, P W 7 and P W 6 all knew both accused. All those witnesses were very familiar with the 1st accused. He lived in their area. P W 2 and P W 6 were familiar with the 2nd accused but P W 7 said that he did not know him very well but had previously seen him at Kimanjo center and he knew 2nd accused was a Samburu.

8. Deceased’s father ( P W 1) , brother P W 6 and mother ( P W 9) said that deceased failed to return home on 16th May, 2012 after going to collect firewood. The mother and brother together with others mounted a search for her that night up to 11p.m but did not find her.

9. On 17th May, 2012 deceased father ( P W 1) and brother ( P W 6) decided to report the disappearance of deceased at [particulars withheld] Primary School. P W 1 said that he decided to report to the school because he thought the deceased had been “taken to be married off”. On being asked why he feared deceased had been married off P W 1 said:

“It is because she did not return and there was a boy who used to come [to] our home”.

P W 1 further stated that he had noted that the 1st accused used to talk to the deceased and that 1st accused used to visit his homestead often. P W 1 said that he warned 1st accused against associating with the deceased. P W 1 in this regard said:

“I noticed [that] 1st accused was disturbing the deceased. 1st accused had come to our home often since he was from our neighbourhood………….. I noticed 1st accused frequented our home and he was disturbing deceased, I chased him away. Deceased was a school girl”.

10. On reporting at [particulars withheld] Primary School on 17th May, 2012 P W 1 was given by the head master a letter which he was directed to take to the chief. Before he reached the chief’s office P W 1 heard screams and people crying. On going in that direction where the screams were coming from P W 1 and P W 6 learnt that the deceased’s body had been found by those crying. Both P W 1 and P W 6 were prevented from approaching the scene where the deceased’s body was.

11. Prosecution’s evidence was to the effect that 1st accused was pursuing the deceased for a love affair and he had threatened to kill deceased if she rejected him. P W 6 said that deceased’s body was found not far from where he had seen her collecting firewood the day before. He further said:

“1st accused loved my deceased sister. He, 1st accused said if she left him he would kill her. 1st accused loved my sister and when my sister rejected him he said he would kill her.

………. I heard my sister say, she told me on the day she rejected him. It’s true he said he would kill her for rejecting him. My sister [deceased] had rejected 1st accused about a week before she was killed. It was my sister who told me that she rejected him.

P W 6 also said that the 1st accused had a relationship with the deceased but was not aware for how long they had that relationship. He again said:

“I got to know from my deceased sister that [the] 1st accused said he would kill her for rejecting him. I do not know [if] she told anyone else”.

12. P W 1 in evidence also stated that 1st accused wanted to marry the deceased but he had warned him not to visit his homestead because deceased was still a school going girl.

13. P W 2 stated in evidence that the deceased was killed 10 meters from where he had seen the two accused speaking with the deceased. P W 6 stated that the deceased was killed near a seasonal river.

14. Ltsoison the 1st accused gave sworn evidence in his defence.

15. In his defence he said that he was unmarried and a resident of Kimanjo and that he was conducting business of selling goats all over the country. He denied committing the offence of murder. That on 16th May, 2012 he woke up and went to Nanyuki with goats he wanted to sell. He sold three goats at Nanyuki slaughter house. He was left with five goats which he took to a place called Makadora which is 20 kilometers from Nanyuki and 42 Kilometers from Kimanjo. Makadora was the place he and his family that is his mother and two young siblings, had moved their boma (their homestead) in search of pasture. On 28th May 2012 as he slept in their boma many people came and one of them called Robert Sapunyu (P W 3) hit him on his face which caused bleeding. When he asked why he was hit all those people grabbed him and tied his hands and legs. He was taken by a roadside to a Chief known as Tunoi and that Chief summoned police who arrested him. The police told him he was arrested because there was some killing in Kimanjo. 1st accused denied having attempted to cut P W 3 with a knife.

16. 1st accused said that the deceased was their neighbour when he lived in Kimanjo. In his defence he stated he did not have a love affair with the deceased and that he did he have a grudge against her. He termed the evidence of P W 6 as fabricated. That P W 6 could not have seen him taking miraa because by then he and his family had moved out of Kimanjo that is by April, 2012. That they moved out of Kimanjo with his mother and his younger siblings. His father had died in 1997. 1st accused also denied that P W 7 saw him and his co-accused in the company of the deceased. He however accepted the evidence of P W 7 that he, P W 7 knew him very well. 1st accused also confirmed he knew P W 7 well. He attributed the evidence of P W 7, whereby P W 7 said he clearly saw him, to the fact that they knew each other very well and also because P W 7 knew that 1st accused had been arrested over the murder of deceased.

17. 1st accused said that he used to see 2nd accused at Kimanjo market. He denied they were friend, he said:

“He (2nd accused) is just an acquaintance. I used to buy goats from him. We had known each other for about one year before arrest”.

18. On being cross examined 1st accused said that he and his family moved out of Kimanjo in April 2012 but he could not recall the date. Almost with one breath 1st accused said he was born in Kimanjo and then said that he and his family lived in Kimanjo only one year before moving out in April, 2012. That he would however only return to Kimanjo on market days. He acknowledged that there was a day in May 2012 on a date he could not recall he attended Kimanjo market.

19. 1st accused further denied that the deceased began to have a relationship with someone called Harrison Moto and denied that one time he saw Harrison Moto and deceased make love. 1st accused also denied having told police that he stabbed deceased because he was angered by that relationship.

20. The 2nd accused gave sworn evidence in his defence. He said that he was a resident of Lowuangiro within Isiolo County. That he was herding cattle and goats belonging to his father. That on 16th May, 2012 his father sent him to Kimanjo Market to sell one goat and with the money from that sale to buy chemical to wash the cattle. He said he did as requested and purchased the washing chemical. He had travelled to Kimanjo on foot and was returning home on foot when he met his co-accused at about 3p.m. They met a little distance from Kimanjo market. 1st accused greeted him since they knew each other. They became acquainted when he began attending the market. He then said:

“Stephen (1st accused) said he was waiting for someone. He (1st accused) then pointed to someone. He pointed to someone approaching. On looking I noticed it was the girl he used to be with”.

2nd accused said that he met 1st accused on that day he said to him that he was waiting for someone. That as they chatted 1st accused said:

“that is the person I am waiting for”.

It was then that the 2nd accused noticed it was a female who was coming towards them. 2nd accused noted that the female was someone he used to see at Kimanjo town. He could not then recall her name. 1st accused told 2nd accused:

“that is a person I was waiting for”.

1st accused then told 2nd accused a word in Samburu, that is “shomo” which he said means ‘go away’. 2nd accused on being told by 1st accused to go away in Samburu language said he left and he went home.

21. 2nd accused testified that he was arrested on 2nd June 2012 at 9a.m.at his father’s home. His father was present and even followed him, while under arrest, up to Kimanjo police station.

22. 2nd accused said that when he was placed in the police cell at Kimanjo he was beaten by three police officers. One of them was the investigating officer in this case namely C I Bor Kipkorir. One of them stepped on his neck while the others were hitting him on his private parts. The officers were demanding that he discloses who killed “someone”.That when 2nd accused told them he did not know this infuriated them leading to them beating him even more. 2nd accused said upto that time it had not been disclosed to him who had been murder. That the beating went on for a long time. He got injury to his testicle, his forehead and his back. He produced in evidence his P 3 form which was filled after this court on 16th June, 2016 ordered that he be escorted to hospital for it to be filled.

23. The doctor, who filled the P3 form on 24th August, 2016 noted that 2nd accused had a healed head scar 2cm in length. Healed scars on the back. Surgical scar on his groin and healed scar on his lower limb, the thigh.

24. 2nd accused stated that as a result of the assault he suffered he lost consciousness and he was unwell for three days. That he was subsequently taken to hospital and he underwent surgery in his private parts. Indeed the doctor who filled the P3 form noted that 2nd accused on being examined was found to be missing one testicle.

25. 2nd accused denied the evidence adduced by the prosecution that he was seen in the company of both the 1st accused and the deceased.

26. 2nd accused testified that the 1st accused had informed him that the deceased was his girlfriend. This is what he stated in evidence:

“The deceased I used to see her and Stephen my co-accused had told me that she was his girlfriend. I have never spoken to deceased. I could tell it was her deceased …… I looked as the female (the deceased) approached. I could tell it was Stephen’s (my co-accused’s) girlfriend”.

ANALYSIS AND DETERMINATION

27. The prosecution in law is required to prove the ingredients of murder, namely:

The fact of dealt,

Proof the deceased met her death as a result of an unlawful act or omission of the accused; and

Proof that the said unlawful act was committed with malice aforethought.

28. The fact that deceased was dead is proved by P W 1, P W 3, P W 6, P W 9 and P W 10 at the scene. Death was also confirmed by Doctor Joseph Karimi Kinyua who performed the post-mortem of the deceased’s body. The doctor found that the deceased suffered injury to the left side of the neck 6cm long; a cut wound on the chin. Penetrating cut wound which led to the puncture of the stomach and which led to the spill of deceased’s stomach content; and a penetrating cut wound in the posterior trunk. The cause of death was excessive bleeding due to the noted stab wounds.

29. In this court’s view prosecution proved the death of the deceased.

30. In regard to the second ingredient the prosecution presented circumstantial evidence. The court of appeal in the case: MUSILI TULO V REPUBLIC [2014] eKLRset out the following tests in respect to circumstantial evidence.

i. The circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;

ii. Those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;

iii. The circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else.

Those principles were set out in the case of G M I V. REPUBLIC [2013] eKLR which echoes the locus classicus case of R.V. Kipkering Arap Koske & Another, 16 EACA 135.

31. I had the opportunity to see and hear all the witness who testified including the accused person. The sequences of events from prosecution’s evidence are that the deceased left school on the evening of 16th May, 2012. She arrived at home and was seen by her father (P W 1). Her mother (P W 9) requested her to go and fetch firewood. On changing from her school uniform she took a sack, an axe and a panga and went in search of that firewood. Her mother said that they normally went to a dry or seasonal river area to collect firewood. Her mother had earlier on seen the two accused seated near that dry river bed. She was so certain that on being challenged by Learned Counsel Mr. Kiget for both accused in cross examination she meticulously gave details of the way each accused was dressed. The brother of deceased (P W 6) that evening of 16th May, 2012 on his way from Kimanjo shopping center, going home, met his sister the deceased collecting firewood. As she did so she was heading in the direction where he found both accused seated on a tree eating miraa. Thereafter P W 2 while driving his animals home saw the two accused by the roadside in the company of the deceased. Similarly

P W 7 as he was on his way home from school met the two accused standing by the roadside talking to the deceased.

32. P W 7 when he passed the trio noted that both accused had the Masaai knife and rungu.

33. What become obvious from the prosecution’s evidence and to some extent the 2nd accused evidence is that both accused were close friends. The deceased’s mother stated that she used to see both accused frequently together. P W 7 even described the conversation between both accused and the deceased as of “besti”meaning best friends. Deceased’s brother described the friendship of the two accused as one of long term friendship. He said in respect of both accused.

“but I often see the accused together”.

The 2nd accused described a close relation with 1st accused. It was Such a cordial relationship that 1st accused confided in him that the deceased was his girlfriend.

34. Another piece of evidence worth nothing is that after the killing of the deceased both the accused move away from their residence. While the evidence of that moving away in regard to the 2nd accused was not all clear, however no questions were put to prosecution witnesses on his behalf to contradict that statement that he run away after the killing. However the evidence that was very clear of taking flight after the murder was in respect to the 1st accused. Deceased father and P W 3 clearly stated that 1st accused run away after the murder and was arrested at a place called Kimakandura. P W 2 stated that after the killing of deceased the 1st accused and his boma moved away from Kimanjo. Further that when he was arresting 1st accused, cried out “don’t kill me”.

35. P W 2 and P W 7 stated that the deceased’s body was near where they last saw the two accused conversing with the deceased. Indeed when deceased’s mother was looking for her daughter at 6a.m on 17th May 2012 and on inquiring from P W 7, while P W 7 was on his way to school, she was shown where the two accused stood with the deceased and on the mother searching around there made the grim discovery of her deceased daughter’s body.

36. When the prosecution’s evidence is juxtaposed with the defence offered by both accused it leads this court to make a finding that the defence offered is contradictory and at times weak hence not displacing the very clear and cogent prosecution’s evidence.

37. The 1st accused denied being in the company of deceased and his co-accused on 16th May, 2012. Both accused offered a defence of alibi. It is important to consider the holding in the case: VICTOR MWENDWA MULINGE – V- REPUBLIc 2014 eKLRwhere the court of appeal stated:

“ In KARANJA -V- REPUBLIC [1983] KLR 501 this court held that in a proper case, a trial court may, in testing a defence of alibi and weighing it with all the other evidence to see if the accused’s guilt is established beyond all reasonable doubt, take into account the fact that he had not put forward his defence of alibi at early stage in the case so that it can be tested by those responsible for investigation and thereby prevent and suggestion that the defence was an afterthought.

38. The alibi defence offered, indeed, by both accused persons was not at all put to the prosecution’s witnesses while they testified. Even those witnesses like P W 2 and P W 7 who categorically testified of both accused being in company of deceased at the road side about 10 meters away from where deceased’s body was eventually found, were not cross examined to question their evidence of the whereabouts of both accused on 16th May, 2012. That in keeping with the holding of the case: Victor Mwendwa case [supra] leads this court to consider the accused’s defence of alibi as an afterthought. One which was concocted when they were testifying in their defence.

39. Indeed in that vein 1st accused was caught lying in his defence when in one moment he said he was born in Kimanjo but on being pressed in cross examination by the Principal Prosecution Counsel Mr. Tanui he said, a moment later that he and his family had moved to Kimanjo a year before moving out in April, 2012. Not only was that contradictory but it was not put to the prosecution’s witnesses who stated that they knew 1st accused very well and that he was a neighbour. In particular the deceased’s family who described 1st accused’s boma as being 20 meters away from theirs were not questioned in cross examination whether 1st accused and his family had only moved to Kimanjo one year before the killing of deceased. In this court’s view the alibi defence is not sufficiently convincing to create a reasonable doubt. On the other hand the prosecution’s evidence has strength and it is able to disproves the alibi defence. It needs to be said that no evidence was provided by the accused to support their alibi defence.

40. 1st accused denial of a relationship with the deceased is countered by prosecution’s overwhelming evidence that 1st accused had either a relationship or desired to have one with deceased. 1st accused went overboard in his denials to the extent he said that he did not know whether the accused was a school going girl yet his boma and that of deceased’s parents were 20 meters apart – and if 1st accused’s evidence is to believed he, 1st accused was born in Kimanjo the very place the deceased’s family resided it cannot be that he did not know the deceased was a school going girl.

41. The 2nd accused in his defence raised a completely different line of defence by alleging that he saw deceased approach the 1st accused and that he departed leaving the 1st accused with the deceased. That evidence which implicates the 1st accused is evidence of a co-accused. How such evidence should be treated was considered in the case: JUSTUS ODOMO MUNYOLE – V- REPUBLIC [1985] eKLR where the court of appeal discussed how co-accused’s evidence can be used in a trial and stated:

“Even if admissible, the statement could not form the basis of a case against the appellant as a co-accused; but it could supplement evidence which narrowly fell short of proof beyond reasonable doubt. The proper approach was stated in Gopa and others- vs- The Queen [1953] 20 EACA 318 as follows:

“the confession of a co-accused is intended to be used to corroborate and even to supplement the evidence in this exceptional cases in which without its aid, the other evidence falls short by a very narrow margin of that standard of proof which is requisite for a conviction …… there must be a basis of substantial evidence to which a confession or statement may be added. If there is substantial evidence against the accused and there remains some lingering doubt, the confession may be taken into account to set that little doubt at rest”.

42. In this case however, having had the opportunity to see the 2nd accused testify I formed the opinion that his evidence was largely self-serving. The 2nd accused was looking after his own welfare in this case when he said that he was not at any time in the company of the deceased. I did not believe that aspect of his evidence. I found P W 2 and P W 7 very honest witnesses when they testified that they met standing by the roadside the two accused persons in the company of the deceased. P W 2 proved his honesty when he refused to be persuaded by the prosecution to identify the axe before court as the axe the deceased had with her on the fateful day. In the light of the evidence of P W 2 and P W 7 I discount 2nd accused evidence that on 16th May, 2017 he was not in the company of deceased.

43. In determining the second ingredient of the offence of murder, that is, that proof of death resulted in the unlawful act of the accused person I direct my mind to the clear evidence of the prosecution that it was the 1st accused who had or wished to have a relationship with the deceased. He share this with his friend the 2nd accused. He told the second accused that the deceased was his girlfriend. That evidence by 2nd accused that 1st accused told him the deceased was his girlfriend was corroborated by the evidence of deceased’s brother (P W 6) and by deceased’s father and mother. The deceased father testified that he was concerned with the visits of the 1st accused at his boma which visits according to him, were directed at the deceased. As a consequence the deceased’s father warned the 1st accused not to visit his boma and to leave the deceased alone because she was a school girl. That evidence together with evidence of P W 2, P W 7 and P W 6 points irresistibly to the 1st accused having committed the unlawfully act which caused the death of the deceased. The 2nd accused his friend was with him from earlier on upto the time they were seen the three of them, that is with the deceased. The inference of guilt of the accused is the only one capable of being reached upon the consideration of all the facts in the evidence. The facts are that the 1st accused had threatened the deceased with death if she rejected him. The deceased shared this threat with her brother (P W 6). 1st accused pursued the deceased until that pursuit become apparent to her father. 1st accused shared his love for the deceased with his friend the 2nd accused. On the material date the 1st accused was in the vicinity where the deceased was collecting firewood. The 1st accused and 2nd accused were seen on the road side with the deceased and the following day the deceased’s body is found 10 meters away from that vicinity. I do find that the accuseds’ guilt is the only rational and reasonable inference open with that evidence in mind. The prosecution in my view proved beyond reasonable doubt that both accused caused the death of the deceased which act was driven by deceased’s rejection of the 1st accused’s romantic overtures. The prosecution’s evidence clearly showed both accused were friends and always in each other’s company. It follows that with that friendship and because they were last seen in company of deceased the prosecution proved beyond reasonable doubt that they caused the death of deceased.

44. The third ingredient, whether the proof of the unlawful act was committed with malice aforethought in this court’s view was proved by the prosecution. Prosecution proved intention to kill. 1st accused made his intention clear to the deceased that if she rejected him he would kill her. The both accused had mens rea. As much as 1st accused tried to extricate himself from the charges he faced he failed. He was not a truthful witness when he gave evidence in his defence. He lied of the fact that he run away from Kimanjo after the murder of deceased. He lied by one time saying he was born in Kimanjo and soon thereafter saying that he had only lived in Kimanjo for one year before moving out in year 2012. His evidence was contradicted by the prosecution witnesses. The prosecution witnesses gave clear and truthful evidence. I believed the of P W 2,

P W 6 and P W 7 which placed both accused near where the deceased was later to be found dead. It was proved by prosecution that the 1st accused had a motive of killing the deceased, and the 2nd accused his friend assisted him in his unlawful act.

45. In the end I am satisfied of the guilt of the accused on the requisite Criminal Standard of Proof. I accordingly convict LTSOISON STEPHEN NTUKAI and PATIREE LOKUIYE FRANCIS of murder as charged.

Dated and Delivered at Nanyuki this 4th October 2017

MARY KASANGO

JUDGE

Coram

Before Justice Mary Kasango

Court Assistant: Njue/Mariastella

1st Accused: Ltsoison Stephen Ntukai

2nd Accused: Patiree Lokuiye Francis

For state: ………………………………

For accused: ……………………………

Language …………………………………

COURT

Judgment delivered in open court

MARY KASANGO

JUDGE