[2015] KEHC 3088 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KITALE

CRIMINAL CASE NO. 32 OF 2011

REPUBLIC...................................................PROSECUTOR

VERSUS

PATRICK NAMEYAN EKAI...................................ACCUSED

J U D G M E N T

1. The accused, Patrick Nameyan Ekai, was charged with murder contrary to S. 203 read with S. 204 of the penal code, in that on the 17th May 2011, at ADC suam Orchards Farm Trans – Nzoia County murdered Simon Serem Chirchir.

2. The case for the prosecution was that the deceased was son to Kiptoo Arap Chirchir Joseph(PW1), and a teacher by occupation. Prior to the material 17th May, 2011 he reported to a colleague, Wanjala Harun (PW7), that he was feeling unwell and was given some money to go for treatment and buy drugs. He left his place of work at Chepata Secondary School Endebess, at 3. 30 p.m and was never seen there again. He failed to report on duty on the material date as well as the 18th may 2011.

3. On 19th May 2011, information trickled in to the effect that a person had been found stealing fruits at Suam Orchard ADC Farm and was beaten up and seriously injured by the farm's security guards to the extent that he passed away while being taken to Endebess District Hospital. The said person was later identified as the deceased.

4. Dr. Blastus Kakundi (PW 6) conducted a Post Mortem on the body of the deceased and indicated in his report (P.E.2) that the cause of death was severe head injury secondary to blunt trauma. The body was identified by the deceased's father (PW1).

5. Geoffrey Wanjala Viela (PW2), Benjamin Nyongesa (PW3), John Simiyu Wamalwa (PW4) and Andrew Nyongesa (PW5), were all security guards at the said farm. They knew the accused as their colleague workmate and all of them were on duty on 16th May 2011, when at about 1. 00 a.m to 2. 00 a.m an alarm was raised by way of shouts that thieves had been spotted within the farm. Minutes later, one of the alleged thieves was apprehended and assaulted allegedly by the accused. He (thief) turned out to be the deceased herein.

6. PC Simon Kirui (PW8) investigated the incident and in the process apprehended the accused and his colleagues (PW2, 3, 4, & 5). He learnt that the deceased had been assaulted and fatally injured by the farm's security guards. He later released the accused's colleagues and charged the accused on his own for being suspected of having been the only one who assaulted and fatally injured the deceased.

7. The defence case was a denial that the accused was the person responsible for fatally assaulting the deceased. His contention was that he was on duty with his colleagues when he heard shouts and screams. He joined his colleagues to inquire as to what was happening. They found that a group of people had fought on their way from Uganda and that one of them was seriously injured. The injured person was taken to hospital but he (accused) was later surprised when he was charged with the present offence. His colleagues who wee arrested with him were released after implicating him with the offence which he did not commit.

8. From the evidence, the basic issue arising for determination is whether the deceased met his death after being assaulted and if so, whether the accused was the person responsible for the unlawful act which caused the death. The Post Mortem revealed that the deceased suffered severe head injury occasioned by blunt trauma after allegedly being caught stealing oranges in the material farm.

The accused colleagues (PW 2, 3, 4, & 5) confirmed that the deceased was a suspect thief and that he was apprehended and assaulted. The accused talked of the deceased having been involved in a fight with a group of people in which he was part of and was as a result seriously injured.

9. Whatever the case, the proven fact was that the deceased was assaulted and ended up dying from his injuries. He ought to have been handed over to the police on being apprehended. Those who assaulted him took the law into their own hands with drastic consequences. The next question would be whether the accused was one of those people.

10. Apparently, a total of five suspects were apprehended, these were the accused and four of his colleagues (PW2, 3, 4, & 5) who testified for the prosecution. This meant that people were equally suspected of having assaulted the deceased but most intriguing was the fact that the accused was the only one charged with the offence.

11. The investigating officer (PW 8) did not come out clearly as to way the accused was the only one arraigned in court. This meant that he was not sure as to whether it was actually the accused who inflicted the fatal injury upon the deceased. The stick or rungu (P.Ex.1) allegedly used by the accused was not subjected to forensic examination to establish that it was the murder weapon and that it was utilized by the accused at the material time. This meant that any of those people who confronted the deceased could have inflicted on him the fatal injury. Although, the accused suggested that the deceased was involved in a fight, the evidence indicated otherwise and rendered that part of the defence unreliable.

12. The actual circumstances which led to the death of the deceased as per the evidence were that he was suspected of being a thief after being found at the farm in ungodly hours. He was however, beaten up by the farm's security guards who caught or confronted him after being caught. The guards were the accused, PW2, PW3, PW4 and PW5. They are the ones who must likely than not assaulted the deceased but it was difficult to say who among them inflicted the fatal blow which caused the fatal injury on the deceased's head.

The evidence by PW2, PW3, PW4 and PW5 for or against the accused was that of accomplices and could not be relied upon in the absence of independent corroboration.

13. There being uncertainty as to which person inflicted the fatal blow upon the deceased, the accused must have the benefit of doubt as it cannot be stated beyond reasonable doubt that he was the person who was actually responsible for killing the deceased. Any of those people who assaulted the deceased could have inflicted the fatal blow which was the ultimate cause of death.

14. Consequently, this court must find and hereby finds that the prosecution was unable to discharge its burden of proof in showing that the accused was the accused person responsible for inflicting upon the deceased the injury which caused his death.

The actual is therefore found not guilty as charged and is hereby acquitted.

J. R. KARANJA

JUDGE

[Delivered and Signed this 1st day of July 2015]