[2017] KEHC 2554 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIVASHA

CRIMINAL CASE (MURDER) NO. 59 OF 2015

(FORMERLY NAKURU HCCRC NO. 5 OF 2014)

REPUBLIC…………………………PROSECUTOR

-VERSUS-

MOROMBI SANKARE SETEK…..….…ACCUSED

J U D G M E N T

1. The Accused was charged with Murder contrary to Section 203 as read with Section 204 of the Penal Code. In that on the 14th day of December, 2013 at Mt. Longonot Forest Suswa in Naivasha Sub-County within Nakuru County, he murdered Lesingo Tanim Kilusu. He denied the charge.

2. The prosecution called five witnesses. The case against the Accused was that in March 2013 he was recruited by Sampala Tanim(PW3) as a goat herd. PW3is the father of the deceased, Lesingo Tanim.

3. In the month of November 2013 the deceased described as a young boy was on holiday. He was instructed to accompany the Accused to drive the family herds to pasture at Longonot. The two were to remain there for a while. PW3 last visited the Longonot pasture therein after in 2013 and saw both boy and the Accused. On or about 14th December 2013 the deceased’s brother William Korash Tanim(PW2) visited Longonot. He found no trace of the Accused or the deceased. The herds had been abandoned. On searching, he found some of the deceased’s clothes in a dam in the area.

4. Subsequently a search was mounted by the family for the two missing persons. PW3 called the Accused on phone. The Accused reported that he and the deceased had been captured and taken to Mombasa by some unknown people. That he had escaped and needed fare back home. Through police, the Accused was eventually traced at Maai Mahiu in January 2014.

5. Upon interrogation by CPL Nyerere (PW5), the Accused led police to a gorge in Longonot where a search yielded more clothes of the deceased. A further search some distance from the gorge yielded some human bones which were retrieved by police. They were certified as human bones by Dr. Ngulunguand sent for analysus conducted by a government analyst Henry Kiptoo Sang (PW1). Upon examination and comparison with DNA samples of the parents of deceased the bones were confirmed by the Government analyst to belong to their offspring. The Accused was charged.

6. When he was placed on his defence the Accused elected to make an unsworn statement. To the effect that in 2013 he worked as a herdsman employed by PW3. Initially he herded PW3’s goats at Satellite area before moving to Longonot with one Peter Muruan. That PW3remained at Satellite area with the cattle. That on 9/12/2013 he informed PW2 that he was proceeding to a funeral in his home.

7. Subsequently, PW2 called him on 13/12/2013 asking him to return to Longonot but he said he could not, returning on 4/1/2014 only to get lost on the way. Then,PW2 called him to meet at Maai Mahiu. When they met, PW2 demanded to know the whereabouts of the deceased whom he said he did not know.

8. He was restrained by his questioners and handed over to police who subsequently led him to Longonot area. He led them to the last pasture site. At that point he was shown clothes from a paper bag carried by PW2 and asked to explain. He was tortured when he expressed ignorance. On the next day he returned to Longonot for a second search. He described prosecution evidence as false.

9. There is no dispute that in the material period the Accused was employed by PW3 as a herdsman and that prior to or early in December, 2013 he drove PW3’s goats to pasture in Longonot area. That subsequently he left the area and PW2 contacted him by phone around mid-December. That eventually the Accused andPW2 met at Maai Mahiu in January, 2014 and the former was placed in custody. By that date some remains of the deceased had been found in Longonot.

10. The court must determine whether in the period he was at Longonot, the Accused was in the company of the deceased; whether it was the deceased’s remains that were subsequently found in the said area and if the Accused is culpable for his death.

11. Regarding the first question, there is evidence by PW2 and PW3 whom the Accused was well familiar with that the latter travelled to Longonot in the company of the deceased. Indeed PW3 stated that he spent the night of 12th and 13th November or December visiting the duo at Longonot and left the next day to take home some lambs. PW3 seemed to have problems with precise dates, possibly due to his evident illiteracy but in cross-examination he maintained the stated visit at Longonot. PW2 appeared to have a clearer understanding of dates, and though he had not visited Longonot prior to 14/12/2013, he stated that the Accused had travelled to Longonot with the deceased early in December (5/12/2013). It is possible therefore that the movement of herds to Longonot was in the period from late November to early December 2013.

12. When PW2 did visit Longonot on 14/12/2013 the sheep were abandoned and the deceased boy and Accused were nowhere to be seen. Despite this evidence by PW2 and PW3, also confirmed by Ketikai Ole Tobiko (PW4) the Accused during cross-examination never suggested to the witnesses that he worked in the material period with Peter Muruan and not the deceased, or in any way canvass the position that he did not know the deceased. It beats reason that PW2, PW3 and PW4 who admittedly knew the Accused well as co-herder would out of the blues search for and question him about a boy he did not even know.

13. Evidence byPW2, PW3 and PW4 receives independent corroboration in the form of the clothes (Exhibit 3) of the deceased that were recovered at Longonot by PW2 and PW5, as well as the remains retrieved close to the gorge on 8/1/2014. In his defence statement the Accused admitted that on the day he led police, PW2 andPW3to the last pasture place, PW2 showed him clothes and he was questioned. In part this confirms evidence byPW2 that during the initial visit to Longonot on 14/12/2013 he had retrieved some clothes of the deceased retrieved in evidence as Exhibits 3.

14. Evidence byPW2to PW4 was that on the second search, in presence of the Accused, the bones of the deceased were found. While admitting the second search, the Accused did not specifically say anything about the said recovery of the deceased’s remains. PW5 stated in his evidence that upon re-arresting the Accused, on 7/1/2014, he interrogated him.

15. PW5 further testified that:-

“The accused led me to Longonot gorge. We had to go down through a pathway and in the steep gorge we found a jacket, trouser and shoes of deceased………… we continued looking – a kilometre from gorge towards the Longonot satellite. We found 7 bones which we suspected to be those of the deceased…………... The bones were in a flat place some kilometre from gorge.”

PW5 in cross-examination by Mr. Mburu confirmed that:

“………while the clothes lay scatted in the gorge, the bones also scattered in a circumference of 5 metres one kilometre from the gorge.”

16. Despite the evidence by PW5 and others relating to the search for the deceased’s body in the vicinity of the Accused’s admitted last pasture spot, the defence did not suggest to any of the witnesses, including PW5 that the Accused did not know the deceased and therefore who was being sought, or seriously challenge the recovery of the boy’s clothes in the area.

17. The recovered bones were documented in the post mortem report by Dr. Ngulungu [Exhibit 5] as follows:

“Long Bones

B1 Resembles part of femur………have fractured into fragments length 200mm

B2 Resembles the fibula length. 200mm with rough irregular ends………

Two Ribs, the longest in respect of ………..and shorter 170mm

Have fractured ends. The others are fragments of bony tissues aggregating to 90 x 60mm”

18. The bones were submitted for DNA analysis alongside blood samples of PW2 and his wife Nayeiyio Sampana. Henry Kiptoo Sang(PW1) the Government analyst upon his analysis concluded that “there were 99. 99% chances that Sampana Ole Tenim and Nayieyio Sampana are the biological parents to the donor of the bones…….”

19. The finding of the bones and deceased’s clothes roughly in the admitted areas of grazing of the Accused during the material period strongly corroborates the presence of the deceased in the area in the company of the Accused in the same period. Thus it is my considered view that the allegation by the Accused that he did not know the deceased is not plausible. My finding is that he not only knew the deceased but was with him during the material period in the Longonot area.

20. Based on the foregoing evidence and the testimony by PW2 andPW3 as to the last place the deceased and Accused were grazing the animals, there can be no dispute that the bones in question were the remains of the deceased.

21. It was admitted by the prosecution witnesses that there are wild animals including hyenas in Longonot area. It may well be that the body of the deceased was mauled by these wild marauders. That does not necessary mean that the deceased was killed by wild animals. The cause of his death is unknown. Save that, on the last date prior to 14th December 2013 when PW2 visited, PW3had seen the deceased alive and left him with the Accused person the Longonot pastures. This last sighting of the deceased could be late November or early in the first week of December, 2013.

22. In the case of Dorcas Jebet Ketter & Another -Vs- Republic [2013] eKLR, the Court of Appeal grappled with the fact that there was no direct medical evidence on the cause of death of the deceased therein. The court expressed itself as follows:-

“This brings us to the most crucial part of this entire appeal and that is what we raised earlier in this judgment, namely whether the Appellants, in the absence of medical evidence showing the cause of death of the deceased could still be convicted of the offence as charged. This is the most agonizing part of this case we have anxiously considered it.”

23. The Court of Appeal dismissed the appeal therein. Similarly, in this case, there is cogent and credible evidence by PW2 and PW3 that the Accused and the deceased were grazing PW3’s goats together in Longonot in the material period. The deceased was last seen alive in late November or early December 2013 in the company of the Accused. It is the evidence of PW2that on 14/12/2013 when he visited Longonot he found the herds abandoned and both the deceased and the Accused missing. The Accused admitted that PW2 made several phone calls to him in that period and especially on 13/12/2013.

24. According to PW2, the Accused claimed that he and the deceased had been abducted and taken by some unknown persons or game rangers to Mombasa or Malindi. Claiming to have managed to escape, the Accused asked PW2 to send him fare to return. PW3 andPW4 who participated in the search for the Accused at Longonot and Narok confirmed this in their evidence.

25. While these witnesses asserted that the police used the Accused’s phone to track him, it is unfortunate that the details of his movements were not demonstrated through call data records. Be that as it may, the Accused’s defence was in part that he informed PW2 on 9/12/2013 that he would travel for a funeral, spoke toPW2on 13/12/2013 and was instructed to return to Longonot. He did not appear until 4/1/2014 even then he claimed to have lost way. This alleged excused departure or absence from Longonot was not put to PW2 or PW3 in cross-examination. Whatever the case, the Accused was missing on 14/12/2013 when PW2 returned to Longonot. The small boy was also dead.

26. As the last person to be in the company of the deceased, the Accused ought to explain what happened to him. This is the essence of Section 111 of the Evidence Act which states:

“(1) When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any exception or exemption from, or qualification to, the operation of the law creating the offence with which he is charged and the burden of proving any fact especially within the knowledge of such person is upon him:

Provided that such burden shall be deemed to be discharged if the court is satisfied by evidence given by the prosecution, whether in cross-examination or otherwise, that such circumstances or facts exist:

Provided further that the person accused shall be entitled to be acquitted of the offence with which he is charged if the court is satisfied that the evidence given by either the prosecution or the defense creates a reasonable doubt as to the guilt of the accused person in respect of that offence.

(2) Nothing in this section shall—

a. prejudice or diminish in any respect the obligation to establish by evidence according to law any acts, omissions or intentions which are legally necessary to constitute the offence with which the person accused is charged; or

b. impose on the prosecution the burden of proving that thecircumstances or facts described in subsection (1) of this section do not exist; or

c. affect the burden placed upon an accused person to prove a defence of intoxication or insanity.”

27. Apart from the Accused’s reticence regarding the fate of his boy companion, his explanation at the trial as to his departure from Longonot and subsequent return sounds incredible. The departure for a funeral was not canvassed with PW2, and secondly no explanation is given for the fact that whenPW2called him to return to Longonot the Accused said he “could not”.

28. His claim that he returned some 21 days later but got lost on the way sounds decidedly spurious. This is a person who on all accounts had been grazing in the Longonot Satellite area for a long time. He, if it is believed, travelled by himself to the funeral but allegedly got lost while returning to Longonot. Even then he was able to find his way to Maai Mahiu to meet up with PW2 and later to admittedly lead PW5and other witnesses from Naivasha to pasture spot in Longonot on his arrest.

29. In my considered view, the truth must be as PW2andPW3stated, namely that the Accused was traced at Maai Mahiu after a long search since 14/12/2013. His statements to PW2 that he was in Mombasa, and to this court that he left for a funeral cannot both be accurate. These statements were intended to throw PW2 and others off his trail as they searched, and to this court to cover up for the fact that he abandoned PW1’s herd and disappeared without reason between the first week of December, 4th January 2014 when caught in Maai Mahiu on 4th January 2014.

30. His mysterious disappearance and abandonment of PW3’s sheep, in my own view strongly suggest that the Accused was laboring under a guilty knowledge. His attempted explanations to PW2 and to this court are false and an afterthought, respectively. Secondly his denial, against all odds, that he knew and was in the company of the deceased boy in the material period speaks volumes.

31. Admittedly, the prosecution in this case relies heavily on circumstantial evidence. The predecessor to the Court of Appeal held in Kipkering Arap Koskei -Vs- Republic [1949] 16EACA 135 where the court stated 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 in capable 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.”

32. Further in Pravin Singh Dhalay –Vs- Republic [Criminal Application 10 of 1997 unreported] following Teper -Vs- Reginam (1952) AC 480 that:-

“It is also necessary before drawing the inference of the accused's guilt from circumstantial evidence to be sure that there are no other co-existing circumstances which would weaken or destroy the inference”

See also Simoni Musoke –Vs- Republic (1958) EA 715.

33. It has been proved that the Accused and the deceased boy were together herding PW3’s goats in Longonot area in the material period. The Accused was the last person seen in the company of the deceased byPW3 on late November or early December, 2013. Subsequently, the Accused disappeared and the child could not be found, eventually his remains found in a gorge. When traced the Accused gave inconsistent explanations about the circumstances of his disappearance to PW2and also to this court. Before this court his defence is silent on what exactly happened to the deceased minor, the Accused putting up the incredible position that he did not even know the boy.

34. If, as the defence attempted to suggest at some point, wild animals mauled the deceased, or he disappeared, the Accused should have been the first to know and inform the minor’s relatives (PW2 and PW3). After all the Accused was evidently in phone contact at least with PW2.

35. I believe this is a proper case to draw an inference of guilt based on circumstantial evidence. The Accused’s proven conduct – disappearance from Longonot at a time coinciding with the death of the minor is to my mind adequate proof of his criminal intentions. Not only did he cause the deceased’s death, the Accused also made up stories to cover his tracks and possibly hoped that the deceased’s body would disappear without trace, given the presence of wild scavengers in the area.

36. The prosecution evidence in this case totally displaces the Accused’s rather incredible defence. I am satisfied that the prosecution has proved the Accused’s guilt beyond reasonable doubt and will accordingly convict him as charged.

Delivered and signed in Naivasha this 5th day of October, 2017.

In the presence of:-

Miss Amboko for the DPP

Mr. Mburu for the Accused

Accused - Present

CC - Barasa

C. MEOLI

JUDGE