[2017] KEHC 2557 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KAPENGURIA

CRIMINAL CASE NUMBER 4 OF 2016

(Formerly Kitale High Court Criminal Case Number 43 of 2014)

REPUBLIC................................................PROSECUTION

VERSUS

NGULIMANG LOITARENG..............................ACCUSED

JUDGMENT

NGULIMANG LOITARENG, is charged with the offence of Murder, Contrary to Section 203 as read with Section 204 of the Penal Code.

The Particulars of this offence are that on the 2nd day of August, 2014 at around 6. 00pm at Chesomburi area in Weiwei Location within West Pokot County, the accused murdered Chalekwang Amuket.

The prosecution case is that the accused in this case is a Kenya Police Reservist at Chesomburi area, Weiwei Location. The deceased, PW-1, PW-2 and PW-3 are all neighbours at the said place. They know each other well. On 2. 8.2014 at about 2pm PW-2 went to Chetera River to brew chang’aa. She was joined by Cheptamu Longiro (PW-1), Esther Cheptoo aka Mama Maliech (PW-3), Mama Chemwok, Domoita and the deceased. The accused got to the scene later. He quarreled and wanted to pour the brewing illicit brew. The deceased prevented him. The two exchanged harsh words. The accused told the deceased, according to PW-2 and PW-3, that he’ll be arrested and taken to Kapenguria to serve as an example. However, according to PW-1, the accused threatened to kill the deceased and went away. After it got a bit dark those present were given some beer to go and drink at home. On their way home, at about 7. 00pm, PW-2 and Domoita went a different way from the rest as their homes were on the same side of the river they were. The rest crossed the river. The deceased was ahead, he was followed by Mama Chemwok and PW-3 was trailing behind. The accused herein emerged from the bush armed with a stick. He hit the deceased on the back of his head. When the deceased fell down he went on him and twisted his neck. The rest ran away when they witnessed the incident. There was half moon and ample light which enabled them witness the incident.

The following day they heard that the deceased passed on. They went to the scene and found his body in the river. It was retrieved by police officers, among them PW-5 in this case. They placed the body in the police vehicle. The body was taken to Kapenguria Hospital Mortuary. The postmortem was done on 5. 8.2014 at 3. 00pm by Dr. Rono. He observed that the head had multiple scalp haematoma, underlying the bruises. There was no skull fracture. Nervous system had normal brain parenchyma and petechial hemorrhages over the durra. There was some pin point bleeding. There was dislocation of cervical spine at the level of C3. It was totally displaced. PW-4 explained that cervical is the upper part on the neck. C3 is the third one from top. It could have been caused by trauma from the top or a twist of the neck. There was contusion at the point of C3.

The conclusion was that the deceased died as a result of acute spinal cord injury, consistent with physical strangulation.

PW-5 together with CPL Ngosaga investigated the case. They had the accused arrested and charged.

The accused gave unsworn testimony in his defence. He stated that on 2. 8.2014 he left home and went to the river to take a bath. It was at 4. 00pm. At the river he found people drinking beer. He quarrelled them as the beer was illegal. They did not listen to him as they were very drunk. He left them and went home. On 23. 8.2014 he was arrested. He asked the cause for his arrest and was told he’ll be informed at Marich Police Station. On 25. 8.2014 he was informed that all his animals were taken away and his family members chased away from home. This was in line with Pokot traditional way of a murder suspect paying for killing a person, commonly known as “Lapai”. He was charged in Kitale. He killed no one. He is a Kenya Police Reservist.

At this point the court will determine whether the offence against the accused is proved by the prosecution beyond reasonable doubt.

For the offence of Murder, of which the accused herein is facing, the ingredients that need be established by the prosecution are:-

1. The fact of demise of the deceased, one Chalekwang Amuket.

2. The cause of his death.

3. Proof that he denied as a result of an unlawful act or omission on the part of the accused person; and

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

There is no dispute in the case that Chalekwang Amukat died on 2. 8.2014. All the five prosecution witnesses firmly indicated so in their evidence. The defence does not also challenge this fact.

The evidence of PW-1and PW-3, both eye witnesses to the alleged incident which led to the death of the victim, is clear that the accused herein hit the deceased with a stick on the back of his head, and then while he, the deceased was down, twisted his neck. This evidence is consistent with the finding of the doctor who did the post mortem, who was of the opinion that the deceased died as a result of acute spinal cord injury, consistent with physical strangulation. PW-4 indicated in his evidence-in-chief that the injury could result from trauma from the top or a twist of the neck. The cause of death is therefore not in doubt given the evidence.

PW-1, PW-2 and PW-3 were with the deceased prior to his death at the river bank. PW-2 was brewing chang’aa and the rest were helping her. It’s not in dispute that the accused went to the place and was inclined to pour the brewing chang’aa. The deceased prevented him. The accused and the deceased had a bitter exchange as a result. The accused threatened to have the deceased arrested and charged in Kapenguria. He left. However as the rest were going home, he emerged from the bush and attacked on the deceased with a stick on the head from behind, and while he was down twisted his neck or strangled him. PW-1 and PW-3 witnessed this incident. Though the source of light was not the most reliable as they used half-moon light to see, the fact that they both knew the accused very well as a neighbour, had seen him the very same day a few minutes or hours before, and he had the motive or cause to attack the deceased, leaves no doubt that he is the one who attacked him, and inflicted injuries which led to his death.

In my view he was properly recognized, while the circumstantial evidence as well points irresistibly to him as the real culprit.

According to section 206 of the Penal Code, “Malice aforethought” is deemed to be established by evidence proving any one or more of the following circumstances:-

1. 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;

2. 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, though 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;

3. An intent to commit a felony;

4. An intention…………………….”

Circumstance 1 and 2 above applies well in this case as the act of the accused of striking him with a stick on the head and thereafter strangling him must have been intended to cause him grievous harm or kill him. The later happened. I do find that what he did was with “malice aforethought.”

The accused defence cannot be correct. He conceded that he went to the river and found people drinking beer. He quarelled them as the beer was illegal. They did not listen to him as they were very drunk. He then left and went home. He was evasive in not disclosing the people he met at the river and whether the deceased was one of them. He also avoided completely the evidence that connects him to the death of the deceased. The defence does not challenge the truth of the prosecution case and he is culpable. It’s thus dismissed.

The upshot is that the offence of murder is proved against him by the prosecution beyond reasonable doubt and he’s convicted of it under section 203 as read with section 204 of the Penal Code.

Judgment read and delivered in open court this 1st day of November, 2017 in the presence of M/S Kiptoo for the state and Mr. Abari for the accused person.

S. M. GITHINJI

JUDGE

1. 11. 2017

MS KIPTOO

He is a first offender.

MR ABARI

He is remorseful. He has a wife and a family and he is the sole bread winner. We pray for a lenient sentence.

COURT

I have considered the mitigation. However under Section 204 of the Penal code there is only one sentence provided for the offence which is death. It is the sentence I pronounce against the accused. It is to be carried out as per the law provided. Right of appeal 14 days.

S. M. GITHINJI

JUDGE

1. 11. 2017