[2017] KEHC 203 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAKURU

CRIMINAL CASE NO. 89 OF 2012

REPUBLIC...................................................................................STATE

VERSUS

PETER KIPRUTO CHESHINA........................................ACCUSED

JUDGMENT

The accused PETER KIPRUTO CHESHINA faces a charge of MURDER CONTRARY TO SECTION 203 as read with SECTION 204 OF THE PENAL CODE. The particulars of the charge were that

“On the 12th day of December, 2012 at Sarambei area in Nakuru District within Nakuru County murdered MILKA CHEPKORIR”

The accused entered a plea of‘Not Guilty’ to the charge and his trial commenced before me on 29/7/2015. The prosecution led by the learned State counsel called seven (7) witnesses in support of their case.

PW1 BEATRICE BENEI told the court that she had employed the accused as her herdsman. On 13/12/2012 at 7. 00am the accused came and knocked on the window of the kitchen where PW1 was busy preparing tea. PW1 invited the accused to enter. When he came in PW1 noted that the accused’s shirt and T-shirt had blood stains. She asked the accused what had happened. The accused replied that he had killed someone. PW1 understandably became alarmed at hearing this and ran to call her neighbour. When she returned with the neighbour accused was gone.

PW5 KIPCHUMBA CHEBOI told the court that he was a neighbour to PW1. On 12/12/2012 at 7. 00am PW1 came to the home of PW5 and informed him that the accused who was her herdsman had come to her house wearing clothes stained with blood and reported that he had killed someone. PW5 left with PW1 to go to her home. However upon arrival there they did not find the accused. They searched for the accused and found him in the home of one ‘Tamano’.

The accused told them that he had killed one ‘Chepkorir’. He then led them to the homestead of one ‘Micah’and pointed out a spot on the ground where there was blood and faeces. The accused then led them to a room in the compound where they found the dead body of the deceased. PW5 phoned the local chief as well as the police.

PW6 CORPORAL JANE KIRUI was one of the officers who went to the scene. She told the court that she found the accused having been apprehended by members of public. PW6 states that she found the body of the deceased lying inside the house. She also saw a spot on the ground outside where there was blood and faeces. The police removed the body to the mortuary and the accused was re-arrested and taken to the police station.

PW2 JOSEPH KOECH CHEMJOR was the husband to the deceased. He told the court that at the material time he and the deceased were separated. PW2 told the court that he had sent the deceased back to her parents due to disagreements over her drinking habits. PW2 told the court that he had no idea how his wife met her death.

Upon conclusion of police investigations into the matter the accused was charged with the offence of murder.

At the close of the prosecution case the accused was found to have a case to answer and was placed onto his defence. The accused gave a sworn defence in which he categorically denied having killed the deceased.

This court must now analyse the evidence on record to determine whether this charge of murder has been proved beyond reasonable doubt.

Section 203 of the Penal Code Cap 63 Laws of Kenya defines the offence of murder as follows

“Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder”

From this definition there can be derived the three key ingredients for the offence of murder all of which must be proved beyond reasonable doubt. There are

i. Proof of the fact as well as the cause of death of the deceased.

ii. Proof that the deceased met his death as the result of an unlawful act or omission on the part of the accused

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

Regarding the fact of the deceased’s death there can be no controversy. PW1 and PW5 both told the court that they saw the dead body of the deceased and both witnesses noted that the deceased was bleeding from the mouth and had marks on her neck.

PW2 who was the husband to the deceased and PW3 SOLOMON KIPSOGON OKWARA who was a brother to the deceased both confirm the death of their kin. The two witnesses told the court that they went to the mortuary and identified the body of the deceased to the doctor for purposes of the post-mortem examination. All these witnesses who knew the deceased well identifies her as ‘Milka Chepkorir’.

Evidence regarding the cause of death was tendered by PW7 DR. TITUS NGULUNGU a consultant pathologist who produced the post-mortem examination from P. exb 4. PW7 told the court that upon examination the body of deceased had blood oozing from the nose and mouth and that bruising and swelling was noted on the neck. Upon an internal examination it was noted that there was severe bruising and oedema on the front of neck. The cause of death was opined to be ‘acute respiratory failure due to pressure to the neck in keeping with strangulation’.

This was expert medical opinion evidence. It was neither challenged nor controverted by the defence. I therefore find as a fact that the deceased met her death due to strangulation.

Having proved the fact as well as the cause of death the prosecution is required to go further and tender evidence to prove that it was the accused who strangled the deceased to death.

There was no witness to the events which caused the death of the deceased. Neither PW1 or PW5 were present when the deceased was strangled.

The two witnesses told the court that the accused told them that he had killed the deceased. The law regarding the circumstances under which a confession is admissible is clearly set out in Section 25 A of the Evidence Act. A confession is only admissible if the accused is properly cautioned and said confession is made before a court or before an officer of or above the rank of Chief Inspector of Police. Such confession must also be reduced into writing and signed by the accused.

No such written confession was produced before court. Although it was alleged that the OCS of the police station recorded the accused’s statement, this OCS was not called to testify as a witness in the case.

In the absence of a statement recorded in compliance with Section 25A of the Evidence Act, this court cannot take into account any statement allegedly made by the accused to other civilian witnesses. Such statements cannot be used to implicate the accused in the murder of the deceased and I will disregard the same entirely.

As stated earlier there were no eyewitness to the murder of the deceased. As such the prosecution sought to rely upon circumstantial evidence to prove their case. Circumstantial evidence is that evidence which though not direct sufficiently serves to implicate an accused person in the commission of an offence.

In REPUBLIC Vs TAYLOR WEAVER & DONOVAN [1928] 21 Cr. App 20, the principle regarding the application of circumstantial evidence was enunciated as follows:-

“Circumstantial evidence is very often the best evidence. It is evidence of surrounding circumstances which by intensified examination, is capable of proving a proposition with the accuracy of mathematics. It is no derogation of evidence to say it is circumstantial”.

Similarly in the case of KARIUKI KARANJA Vs REPUBLIC [1986] KLR, the court held that

“In order for circumstantial evidence to sustain a conviction it must point irresistibly to the accused and in order to justify the inference of guilt on such evidence the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of guilt. The burden of proving facts justifying the drawing of that inference is on the prosecution”.

Lastly on this point in JUDITH ACHIENG OCHIENG Vs REPUBLIC 2009eKLR, the Court of Appeal sitting in Kisumu held as follows:

“It is settled law that when a case rests entirely on circumstantial evidence, such evidence must satisfy three tests:-

i. The circumstances from which the 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 the 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”.

With the above authorities in mind I will proceed to analyze the circumstantial evidence in this case. PW1 told the court that on 13/12/2012 the accused who was her herdsman came and knocked on her kitchen window. The accused was well known to PW1 as he was her herdsman and he lived within her compound. When accused came in PW1 notices that the shirt and T-shirt which he was wearing were stained with blood. In her evidence PW1 stated that the accused was wearing a white/blue stripped shirt and a white T-shirt. She was able to positively identify both the shirts in court. P. exb 1 and P. exb 2. It must be remembered that PW1 was seeing the accused at 7. 00am. It was already day light and visibility was good. The accused came into the kitchen of PW1 and she was in close proximity with him this could see him well.

PW5 also told the court that when he saw the accused on the morning in question he had blood on his clothes.

PW6 was the officer who arrested the accused that very day at the scene. She told the court that when she arrested accused he was wearing a white/blue stripped shirt and a white T-shirt both of which were stained with blood. PW1identified the two items of clothing and produced them as exhibits P. exb1 and P. exb 2.

These two items of clothing were forwarded to the government chemist for analysis, together with a blood sample taken from the deceased and a blood sample taken from accused.

PW4 ELIZABETH WAITHERA OYIENGO was the government analyst. She confirmed having received the two blood samples as well as a white T-shirt and a blue/white shirt for examination. PW4 positively identified the two shirts P. exb 1and P. exb 2 as the clothes she examined. PW4 reduced her findings into a written report dated 15/6/2015 which report was produced as an exhibit P. exb 3. The report indicated that both the shirt P. exb 1 and the T-shirt P. exb 2 were found to be lightly stained with human blood. An analysis of the DNA generated from the blood on the 2 items of clothing, revealed that they matched the DNA profile of the blood sample of the deceased ‘Milka Chepkorir’. In simple and layman’s terms the blood stains on the clothing of the accused was found to be the blood of the deceased.

This evidence directly implicated the accused in the murder of the deceased. How else can the presence of the deceased’s blood on the accused’s clothes be explained? It must be remembered that the witnesses who saw the body of the deceased say that there was blood coming out of the nose and mouth ie the deceased did bleed as she died.

Aside from this inexplicable presence of the blood of the deceased on the clothes which he was wearing there evidence that it was accused who led PW1 and PW5 and showed them the room where the body of the deceased lay. Additionally it was accused who pointed out to PW1 and PW5 the presence of blood and faeces on the ground outside the room where the body lay. This evidence clearly points to the accused having a hand in the death of the deceased.

In his defence the deceased not only denied any involvement in the murder of the deceased but also denied knowing the deceased at all. He stated that he merely stumbled upon the dead body as he went about his normal duties. The accused further seeks to explain the presence of the blood of the deceased on his clothes by alleging that he was forced to carry the body into the room and that is how the blood got into his clothes.

I have carefully considered the accused’s defence. The accused gave a sworn statement in defence. Under cross examination in chief the accused made no mention of having been beaten by the prosecution witnesses. He only stated that he was pushed onto the body. It is only in cross examination that the accused added the fact of having been beaten by PW1 and PW5.

At no time during cross-examination of the prosecution witnesses did counsel for the accused put to them the allegations that they had beaten the accused and pushed him onto the dead body.PW1, PW5 and PW6 all spoke of having seen blood on the accused’s clothing. At no time during cross examination did counsel put to them this allegation that the accused was pushed or fell onto the body of the deceased thereby causing the blood to stain his clothes. This is clearly an afterthought by the accused.

Further the court wonders why either PW1 or PW5 would in any way seek to pin this murder onto the accused. Why would they want to beat him or push him onto the body. There is no evidence of a pre-existing grudge between accused and either of the two witnesses. PW1 only knew the accused as her employee. She told the court that the accused had only worked in her home for eleven (11) days. PW5 was merely a neighbour to PW1 and had no relationship with the accused at all. Neither had any motive to frame him.

I was able to observe the demeanour of the accused as he gave his defence. He did not strike me as being honest. It is clear that his strategy was simply to deny deny deny. All in all I am not persuaded by the defence of the accused. More importantly the said defence in no way weakens the circumstantial evidence. I therefore dismiss the accused’s defence.

I am satisfied that the circumstantial evidence points squarely at the accused and the accused alone as the person who strangled and killed the deceased. The presence of the blood of the deceased on the accused’s clothes the very day she met her death cannot be explained in any other way. I am satisfied that the actus reus for the charge of murder has been proved beyond any doubt.

The last ingredient requiring proof is that of malice aforethought which forms the mens rea for the offence of murder. Section 206(a) of the Penal Code provides that

“Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances

(a) An intention to cause death of or to do grievous harm to any person, whether that person is the person actually killed or not.

The deceased met her death due to strangulation. The accused exerted enough force around the neck of the accused to cause ‘acute respiratory failure’.The only and clear intention in doing such an act would be to kill or to grievously harm the deceased. I am satisfied that malice aforethought has been proved.

Finally I find that this charge of murder has been proved beyond reasonable doubt and accordingly I convict the accused of the same.

Dated and delivered in Nakuru this 6th day of October, 2017.

Ms Chemgetich for Accused

Mr. Chigiti for DPP

Maureen A. Odero

Judge