[2022] KEHC 958 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT ELDORET

CRIMINAL CASE NO. 44 OF 2018

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

VERSUS

RICHARD RUTTO KIPKOSIR.………….……….….………..ACCUSED

JUDGMENT

[1] The accused herein stands charged with the murder contrary to section 203 as read with section 204 of the Penal Code, Chapter 63 of the Laws of Kenya. The particulars are that the on the night of 9th June, 2018 at Kapkonder Village in Tuturung Sub Location, Kipkaner Location of Marakwet East Sub County within Elgeyo Marakwet County, he murdered Perisi Jemaiyo Chebet. He pleaded not guilty to the charge upon his arraignment and had his defence conducted by Ms. Gona, Advocate.

[2]The Prosecution called a total of 6 witnesses in proof of the charge; the first of whom was the mother of the deceased, Tula Chelang’a (PW1). She testified that the accused was her son-in-law, having married her deceased daughter Perisi Jemaiyo Chebet. She further stated that the two had cohabited as husband and wife for a long time and were blessed with seven children. She added that the deceased came back to her home, having been chased away by the accused following a marital disagreement; and that on the night of 9th June, 2018 the accused went to her home and murdered the deceased. She explained that they had slept when the accused gained access to the house because the door that was not locked.

[3] PW1 further testified that, with the aid of the torch that the accused had, she saw him stab the deceased three times on the neck; and added that, as the deceased cried in pain, she ran outside and raised an alarm for help. She told the court that the neighbours responded and came to her home; by which time the accused had run away. It was PW1’s testimony that the deceased died on the spot and her body was taken to the mortuary the following day.

[4] PW2 was Joel Kiptoo Rutto,an uncle to the deceased. His evidence was that the on 15th June, 2018 he went to Kapsowar Mortuary to identify the body of the deceased for purposes of post-mortem. He confirmed that the body had stab wounds on the left side of the neck, right side and back of the head.

[5] Henry Kiror, PW3, testified that on the 9th June, 2018 he was at home at about 9. 00 p.m. when he heard screams from the neighbouring home belonging to his aunt. He stated that he went there to find out what had happened and that on arrival he found that the deceased had died of stab wounds inflicted on her by her husband, the accused herein. He further stated that he inquired what had happened and was told that the deceased had had a disagreement with her husband, the accused; and that when the accused went for her, he had been told to wait for the elders to convene a meeting to discuss and solve the dispute.

[6] PW4 was Samwel Chepkurui Kaino, who told the court that on 9th June, 2018 at 9. 30 pm he was home when he heard his grandmother shouting that she had been attacked. He said that he rushed to her home and she showed him the body of the deceased and reported that the deceased had been stabbed to death. It was also PW4’s testimony that he saw the body when he arrived at the scene and that the deceased was already dead. He explained that he called neighbours and they took the decision to go and look for the accused on being told by his grandmother that it was the accused who killed the deceased. They were however not able to find the accused that night.

[7] Dr. Wilfred Kimosop (PW5) was called to produce the Post-mortem Report in respect of Perisi Chemaiyo Chebet. He confirmed that he conducted an autopsy on the deceased’s body on the 15th June 2019; after the body was identified by PW2and Samwel Chepkor Biwott. In his estimation the time of death was 9. 30 pm on 9th June, 2018. His observations were that there was a cut wound on the left cheek measuring 6cm long and 3cm deep. He also noted that there was a stab wound on the left side of the neck about 4cm long and 4cm deep as well as a cut wound on the left shoulder of 4cm long and 0. 5cm deep. He stated that the stab wound severed the blood vessels supplying blood to the brain.

[8] Regarding the internal appearance of the deceased’s body, PW5testified that the body and systems were normal except that the ligaments of the cervical column were cut at C3 and C4 and that the spinal cord was partially severed at C3 and C4 in line with the stab wound. He consequently formed the opinion that the cause of death was severe haemorrhage due to the stab wounds. He produced the Post-mortem Form as the Prosecution’s Exhibit 1).

[9] The last prosecution witness was No. 75478 P.C Evans Kimutai (PW6),a police officer who was then based at Kapsowar DCI. He testified that on 10th June, 2018 at 6. 30 am he was in his house when he received instructions from DCIO, Mr. Mwalugo, to visit a murder scene; which he did in the company of other police officers. At the scene they found a crowd of people gathered at the house of PW1, the mother of the deceased. The dead body of the deceased was lying in the kitchen on a mud-bed with stab wounds on the left side of the neck and left shoulder. PW6 further stated that, after interviewing some people and recording their statements, they removed the deceased’s body from the scene and took it to Kapsowar Hospital Mortuary pending post-mortem.

[10] PW6 further explained that, according to the report he had received, the deceased had a disagreement with her husband, the accused; and that she had, as a result, gone back to her parents’ home, where the accused committed the offence and disappeared thereafter. He added that it was not until the 13th June, 2018 that he received a report that the accused had been arrested by NPR officers and had been taken to Iter Police Post. The accused was later transferred to Kapsowar Police Station; and after a post-mortem was conducted he was charged with murder.

[11] On being placed on his defence, the accused told the court that on 9th June, 2018 he was at Kapsowar Hospital looking after his sick child, E R[name withheld] who had suffered an injury on the leg after being hit by a piece of wood while he was tending to a calf. He stated that the child had been admitted in hospital and was still in hospital at the time of his arrest. The accused further stated that it was while he was in hospital that he received information that his wife had been murdered and that he was the suspect. He stated that he immediately presented himself at the Police Station and was placed in custody. He denied the allegations against him; including the allegation that he had confessed to having murdered his wife.

[12] At the close of the defence case, directions were given for the filing of written submissions by learned counsel. As far as the record shows, neither side complied. I have nevertheless given careful consideration to the entire body of evidence adduced herein by the Prosecution, as well as the accused’s defence. There is no dispute therefore that the accused and the deceased were husband and wife. There is further no dispute that as of the 9th June 2018, the deceased was at her parent’s home following a marital dispute between her and her husband. Indeed, the accused admitted in re-examination that he had differed disputed with his wife, and that she had consequently gone to her parents’ place and left him with the children to look after.

[13] Needless to say that the offence of murder, as envisaged by Section 203 of the Penal Code, is committed when a person causes the death of another with malice aforethought, through an unlawful act or omission. Accordingly, the burden of proof was on the Prosecution to demonstrate beyond reasonable doubt that Perisi Jemaiyo Chebet died as alleged; that the death was occasioned by an unlawful act or omission on the part of the accused; and that the act or omission complained of was done with malice aforethought.

[14] From the evidence presented herein, there is no dispute that the deceased died on the 9th June 2018 as asserted by the Prosecution. This comes out explicitly in the evidence of the deceased’s mother, PW1, as well as the evidence of the neighbours, PW2, PW3 and PW4 who all saw the dead body of the deceased soon after her demise. Indeed, PW2 was one of the two individuals who identified the deceased body to Dr. Kimosop (PW5) for purposes of post-mortem examination. On his part, Dr. Kimosop confirmed that Perisi Jemaiyo Chebetdied as a matter of fact on 9th June 2018; and that the deceased’s body had deep cut and stab wounds, one of which severed the left external carotid artery and the spinal cord at the cervical level. These injuries led him to the conclusion that the cause of the deceased’s death was hypovolaemia due to haemorrhage from the stab wounds.

[15] On the basis of that uncontroverted evidence, I find as a fact that death was proved beyond reasonable doubt. The contention by the Prosecution that the offence was committed at night after the deceased had gone to bed was also uncontroverted; noting that the accused’s defence is that of an alibi. Hence, it is my finding that there is irrefutable proof that the death was attributable to an unlawful act on the part of the deceased’s assailant. Hence the issues for determination are:

[a] Whether the accused was properly identified as the assailant;

[b] Whether the accused’s alibidefence is tenable.

[16] The evidence of the only eye witness, PW1, was that they were asleep on the night of 9th June 2018 when the accused furtively entered the house. She stated that she was able to see the accused from the light of his torch as he proceeded to stab the deceased on the neck with a knife. It is manifest therefore that the incident in question occurred at night while it was dark. PW1 conceded in cross-examination that there was no source of light in her house at the time. Accordingly, the Court must remind itself, as I hereby do, of the need to test such evidence with greatest care to avoid the possibility of mistaken identification.

[17]Indeed, in Paul Etole & Another vs. Republic [2001] eKLR, the Court of Appeal sounded the caution that:

“…Such evidence can bring about miscarriages of justice. But such miscarriages of justice occurring can be much reduced if whenever the case against an accused depends wholly or substantially on the correctness of one or more identifications of the accused, the Court should warn itself of the special need for caution before convicting the accused. Secondly, it ought to examine closely the circumstances in which the identification by each witness came to be made. Finally, it should remind itself of any specific weakness which had appeared in the identification evidence. It is true that recognition may be more reliable than identification of a stranger; but, even when the witness is purporting to recognize someone whom he knows, the Court should remind itself that mistakes in recognition of close relatives and friends are sometimes made.

All these matters go to the quality of the identification evidence. When the quality is good and remains good at the close of the accused’s case, the danger of mistaken identification is lessened; but the poorer the quality, the greater the danger…”

[18]In this instance, the accused was well-known toPW1;a fact conceded to by the accused in his defence. Hence, this was a case of recognition; in respect of which the Court of Appeal held thus in Anjononi & 2 Others vs. Republic [1980] eKLR held: -

“…recognition of an assailant is more satisfactory, more assuring, and more reliable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or other…”

[19]Thus, I am convinced that, in the circumstances set out byPW1,she was in a position to see and recognize the accused. It is noteworthy too that PW1heard the deceased mention the accused name at the time of the assault. This is significant bearing in mind that the couple had disputed and that the accused was unhappy that the deceased had gone back to her parents. In cross-examination, the accused conceded thus:

“It is true we had disputed with my wife. She had gone to her parent home and had been there for 2 weeks before her death…It is the responsibility of the wife to look after children…”

[20] It is manifest therefore that the accused person was unhappy with the situation in which he was left to fend for their children. Indeed, the written submissions on no case to answer dated 18 February 2020, there is an acknowledgment that the accused stabbed the deceased in self-defence after a fruitless sit-down to have the deceased go back to her matrimonial home. There was therefore credible evidence adduced by PW1 by which she placed the accused at the scene.

[21]The foregoing being my finding, the question to pose is whether the accused’s alibi defence is tenable. To counter the evidence of PW1, the accused stated that, at the material time, he was at the hospital with his son, who had suffered some injuries while chasing after a calf. It is trite law that the burden to prove the authenticity of the accused’s alibi rested with the prosecution. Thus, in Kiarie v Republic [1984] eKLR, the Court of Appeal held thus:

“An alibiraises a specific defence and an accused person who puts forward an alibi as an answer to a charge does not in law thereby assume any burden of proving that answer and it is sufficient if an alibi introduces into the mind of the court a doubt that is not unreasonable…”

[22] Similarly, in Athuman Salim Athuman v Republic[2016] eKLR, the Court of Appeal held that:

"It is trite that by setting up an alibidefence, the appellant did not assume the burden of proving its truth, so as to raise a doubt in the prosecution case...The burden to disprove the alibi and prove the appellant's guilt lay throughout on the prosecution...the purpose of the defence of alibi is to account for so much of the time of the transaction in question as to render it impossible for the accused person to have committed the imputed act...”

[23]It is also trite that the defence of alibi ought to be raised at the earliest opportune time to enable the Prosecution investigate the legitimacy of the alibi. The Court of Appeal of Eastern Africa in the case of R. v Sukha Singh s/o Wazir Singh & Others [1939] 6 EACA 145 held: -

"…If a person is accused of anything and his defence is an alibi, he should bring forward that alibi as soon as he can because, firstly, if he does not bring it forward until months afterwards there is naturally a doubt as to whether he has not been preparing it in the interval, and secondly, if he brings it forward at the earliest possible moment it will give prosecution an opportunity of inquiring into that alibi and if they are satisfied as to its genuineness proceedings will be stopped…"

[24]And in Victor Mwendwa Mulinge v Republic [2014] eKLR, on alibi, the Court of Appeal rendered itself on the defence of alibias follows: -

“…It is trite law that the burden of proving the falsity, if at all, of an accused’s defence of alibi lies on the prosecution; see Karanja vs Republic, this court held that in a proper case, a trial court may, in testing a defence of alibi and in weighing it with all the other evidence to see if the accused’s guilty is established beyond all reasonable doubt, take into account the fact that he had not put forward his defence of alibi at an early stage in the case so that it can be tested by those responsible for investigating and thereby prevent any suggestion that the defence was an afterthought…”

[25]It is significant therefore that the accused person had initially raised self-defence as a defence and stated that he stabbed the deceased in self-defence after he was attacked by the deceased and PW1;thereby placing himself at the scene of crime. He did not give any indication at all that he was in hospital taking care of his son until 1st July 2021 when he gave his defence statement. Thus, the alibi was a complete departure from what he had led the Prosecution to assume to be his defence. Under those circumstances, the Court would be perfectly entitled to surmise, as I hereby do, that the alibi is an afterthought and is for rejection. In any case, having found that the evidence of PW2 is credible, I am convinced beyond reasonable doubt that the accused’s alibi was disproved by the Prosecution. Credible was adduced to prove beyond reasonable doubt that he was at the scene of crime when the act of murder took place; and was sufficiently inculpated in connection with the crime.

[26] On whether the prosecution has proved malice aforethought, it is instructive that in Section 206of thePenal Code malice aforethought is deemed to exist if any of the following circumstances are established:

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

a. 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;

b. 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, although 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;

c. an intent to commit a felony;

d. an intention by the act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony.

[27] Thus, the Court of Appeal in Nzuki – vs- Republic, [1993] KLR 171 stated that malice aforethought is a term of art and emphasized that:

“…Before an act can be murder, it must be aimed at someone and in addition, it must be an act committed with one of the following intentions, the test of which is always subjective to the actual accused: -

a. The intention to cause death;

b. The intention to cause grievous bodily harm;

c. Where the accused knows that there is a serious risk that death or grievous bodily harm will ensue from his acts, and commits those acts deliberately and without lawful excuse with the intention to expose a potential victim to that risk as the result of those acts.

It does not matter in such circumstances whether the accused desires those consequences to ensue or not and in none of these cases does it matter that the act and intention are aimed at a potential victim other than the one who succumbed. (See Hyman vs. Director of Public Prosecutions [1975] AC 55…”

[28] The Prosecution’s case is that the accused knowingly and deliberately stabbed the deceased viciously on the neck, not once but thrice without any lawful excuse. It therefore matters not that he did not desire that death ensues. Accordingly, in the case of Daniel Muthee vs. Republic Criminal Appeal No. 218 of 2005 (UR)it was held that:

“When the appellant set upon the deceased and cut her with a panga several times and then proceeded to cut the young Allan in similar manner, he must have known that the act of cutting the deceased persons on the head with a sharp instrument would cause death or grievous harm to the victims. We are therefore satisfied that malice aforethought was established in terms of Section 206(b) of the Penal Code.”

[29] In view of the above, I am satisfied with the evidence against the accused and I find that all the ingredients of murder have been proved by the Prosecution beyond reasonable doubt. I am further satisfied that the evidence of identification by PW1 effectively placed the accused at the scene of crime and thereby completely displaced his alibi defence. Accordingly, this court finds the accused guilty of the offence of murder contrary to Section 203 as read with Section 204of thePenal Code.He is consequently hereby convicted thereof pursuant toSection 322(2)of theCriminal Procedure Code.

It is so ordered.

DATED SIGNED AND DELIVERED VIRTUALLY THIS 3RD DAY OF MARCH 2022.

OLGA SEWE

JUDGE