[2022] KEHC 9919 (KLR)

Republic v Rotich (Criminal Case 3"A" of 2021) [2022] KEHC 9919 (KLR) (12 July 2022) (Judgment)

Neutral citation: [2022] KEHC 9919 (KLR)

Republic of Kenya

In the High Court at Kapenguria

Criminal Case 3"A" of 2021

WK Korir, J

July 12, 2022

Between

Republic

Prosecution

and

Benjamin Rotich

Accused

Judgment

1. The accused, Benjamin Rotich, faces the charge of murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars of the offence being that on 14th March, 2021 at Kapolonga Village, Kipkomo Sub-County within West Pokot County, the accused murdered David Lomunan.

2. The accused pleaded not guilty to the charge and his trial ensued.

3. It is important to point out from the outset that even though the accused took plea before J.M. Bwonwonga, J, all the witnesses testified before me.

4. The prosecution called six witnesses. The accused is the only one who testified in his defence. Agnes Chepokapkai Lomunan testified as PW1 and stated that the accused who is her brother-in-law went to their home on 14th March, 2021 at about 6. 00pm. She testified that she was at home alongside her three children and her husband, David Lomunan, the deceased herein. Her evidence was that the accused demanded food and her husband asked him to be patient as the food was not ready. It was then that the accused asked her husband why he had called their parents to gossip about him. According to PW1, the accused then grabbed her husband’s shirt and told him he would kill him. The deceased pleaded with the accused that they should not fight but wait for the next day to sort out the issue. The accused then tore the deceased’s shirt as she begged them not to fight. The accused then left for his house which was approximately 2 kilometres away and later returned with a bow and arrows.

5. PW1 further testified that when the accused returned he said that he would kill somebody on that day. She stated that her children hid under the bed while her husband was sitting on the bed. PW1 begged the accused to cool down his temper so that the issue could be discussed the following day but the accused did not listen. The accused instead broke into the house and shot her husband with an arrow saying that the death for that day belonged to her husband. She stated that the deceased was shot in the stomach after which the accused grabbed the arrow and it broke with the head remaining in the deceased’s body. She also testified that the accused dropped the broken arrow and the bow on the ground and ran away from the scene. PW1 further testified that she screamed for help and Joseph and Christopher responded. The two escorted her husband to the hospital at Kapenguria and later to Moi Teaching and Referral Hospital in Eldoret where he passed away.

6. On cross-examination, PW1 testified that the incident occurred at about 6. 30pm and the accused was very drunk. She further testified that the accused and the deceased did not engage in any fight and that when she shouted for help nobody responded forcing her to leave the home to go and seek help.

7. N.C. testified as PW2 and stated that she was a daughter to the deceased and PW1. She stated that on 14th March, 2021 at around 6. 30pm while they were at home with her parents and siblings, the accused came demanding for food. Her mother told him to wait so that she could cook. It was then that the accused asked her father why he gossiped about him. The accused grabbed her father by the shirt and it got torn. He then threw her father on the ground and left for his home. The accused later came back with arrows forcing them to hide inside their house.

8. PW2 further stated that the accused kicked open the door and shot her father on the stomach with an arrow. They then went out and shouted. They locked her father in the house as they went to look for help. Christopher later came and took her father to hospital. She also stated that she was under the bed when the accused shot her father and that she knew the accused who was the brother of her father.

9. On cross-examination, PW2 testified that the incident happened at about 7. 00pm, and that they were all outside when the accused first came to their home demanding food. She further testified that she was under the bed when her father was shot and that she heard the arrow depart the bow string.

10. Joseph Lomunan testified as PW3. He stated that on 14th March, 2021 while at his house, PW1 and PW2 went and informed him that the accused had shot the deceased. He called one Christopher and they rushed to the scene where they found the deceased lying on the bed with an arrow injury on his stomach. They then carried the deceased to his home. While there the accused arrived and threatened to kill him for rescuing the deceased. PW3 then called for a car and they took the deceased to Kapenguria Hospital and then to Eldoret where he underwent surgery. PW3 testified that on 19th March, 2021 he went with DCI officers to Eldoret where a post-mortem was conducted on the body of the deceased.

11. On cross-examination, PW3 testified that the accused had confronted him asking him why he was taking the deceased to hospital and threatened him that he would die alongside the deceased.

12. Joseph Komolinyang testified as PW4 and stated that on 14th March, 2021 at around 7. 30pm, he received a call informing him that he should look for a car to take the victim of a fight to hospital. On his way to the scene, he met PW1 who informed him that the attacker had chased her away. He proceeded to the scene and found the victim on the floor. He then called for a motor vehicle and they carried the victim to the car. They took him to the hospital at Chepareria then to Kapenguria and later to Eldoret where he later passed away. PW4 stated that the deceased had an arrow inserted next his belly button.

13. On cross-examination, PW4 testified that he was informed that the deceased was involved in a fight but he did not witness the incident hence he could not tell who had injured the deceased.

14. PW5 Police Constable Samwel Chirchir testified that he was on duty at Chepareria Police Station on 16th March, 2021 when PW3 went and reported to him that the accused had murdered his brother. PW3 further informed him that the suspect had been arrested at Yawalateke village. Acting on the direction of the OCS, they went and arrested the accused. They were given an arrow, a broken arrow stick, and a bow by the members of the public who had arrested the accused. He was informed that the bow and arrows had been used by the accused to commit the offence. They later handed over the suspect and exhibits to DCI officers from Kapenguria.

15. Corporal Luke Murimi who was the investigating officer testified as PW6. He stated that on 16th March, 2021 he proceeded to Chepareria Police Station to collect a murder suspect. When collecting the suspect, he was also given a bow, an arrow and a broken arrow stick by PW5.

16. PW6 stated that his investigations revealed that the murder occurred as per the evidence of the witnesses. His testimony was that he attended a post-mortem on the deceased’s body on 19th March, 2021. During the post-mortem, an arrow head was extracted and he later took possession of it. He produced an arrow, a broken arrow stick, a bow and an arrow head as exhibits.

17. When cross-examined, PW6 testified that he did not visit the scene and therefore he could not tell how the scene looked like. He further stated that he established the events of the material day from PW1. He also stated that he was not sure who was drunk between the deceased and the accused.

18. The post-mortem report was produced on 6th July, 2021 by consent of the parties.

19. In his defence, the accused gave sworn testimony as DW1. He stated that on 14th March, 2021, he was in his shop at Chepareria the whole day. He closed his shop at about 8. 00pm and went home. The next morning, while at the shop he was informed that his brother had been injured. His father told him that some people had beaten up his brother and he had been taken to hospital. He then went to check on the deceased at Chepareria Hospital and found out that he had been transferred to Kapenguria. He went to Kapenguria where he found that the deceased had been transferred to Eldoret. He went back home and the next day he was arrested by members of the public who escorted him to Chepareria Police Station where he was informed that he had been arrested for killing his brother.

20. On cross-examination, the accused testified that he did not have any evidence to show that he had a shop. He also stated that the people who told him that his brother had been injured were Rose Chesang and Tecla Chewutich.

21. In brief submissions dated 11th April, 2022 counsel for the accused contended that the prosecution had not adduced sufficient evidence to prove the charge facing the accused beyond reasonable doubt. According to counsel, the evidence showed that the accused and the deceased were engaged in a brawl and therefore the accused did not commit the offence as alleged. This Court was therefore urged to acquit the accused.

22. The question for the determination of this Court is whether the prosecution has established the charge of murder against the accused.

23. The accused is facing the charge of murder contrary to Section 203 as read with Section 204 of the Penal Code. Section 203 defines murder as follows:“Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.”

24. Section 204 provides the punishment for a person convicted of murder.

25. The Court of Appeal in Roba Galma Wario v Republic [2015] eKLR stated at Paragraph 26 that:“For the conviction of murder to be sustained, it is imperative to prove that the death of the deceased was caused by the appellant; and that he had the required malice aforethought. Without malice aforethought, the appellant would be guilty of manslaughter, as it would mean the death of the deceased during the brawl was not intentional.”

26. From the evidence on record, the death of the deceased is not contested by the parties. The post-mortem report confirm that the deceased died as a result of severe abdominal injury due to stab wound. This points to the hand of man in the demise of the deceased.

27. As to the circumstances that led to the demise of the deceased, PW1 and PW2 testified that it was the accused who provoked the deceased, tore his shirt before dashing to his house to collect the murder weapon being the bow and arrows. Although PW2 was a child, she gave sworn testimony which was corroborated by PW1. The testimony of PW1 and PW2 was confirmed by PW3 who stated that the accused threatened to kill him because he had gone to take the deceased to hospital. All the three witnesses knew the accused very well. The accused is the brother of the deceased and therefore the brother-in-law of PW1 and the uncle of PW2. PW3 is a brother of both the accused and the deceased. There was no reason advanced by the accused as to why the three witnesses would attribute a murder caused by others to him.

28. When the accused was placed on his defence, he opted not to address the events of the fateful day. He removed himself from the scene and attributed the killing of his brother to other unnamed people. This, despite the evidence of PW1 and PW2 placing him at the scene of crime. Although the accused mentioned the persons who informed him that the deceased had been injured, he did not call them as witnesses. He therefore failed to upset the evidence of the prosecution witnesses which had put him at the scene of crime and established that he is the one who released the arrow that eventually killed the deceased. The fact that the accused had no faith in his defence was confirmed by his submissions in which he attributed the death of the deceased to a drunken fight between him and the deceased. By admitting in the submissions that there was a fight between him and the deceased, the accused appears to have abandoned his testimony that he never met the deceased on the date of the incident. From the evidence adduced in this case, I am convinced by the prosecution that the deceased died as a result of an injury inflicted on him by the accused.

29. The question is whether the accused had malice aforethought. In considering whether the accused had malice aforethought this Court should take into account all the surrounding circumstances of the case. The Court of Appeal in N M W v Republic [2018] eKLR, citing with approval the case of Bonaya Tutu Ipu & another v Republic [2015] eKLR, stated that:“It is in rare circumstances that the intention to cause death is proved by direct evidence. More frequently, that intention is established by or inferred from the surrounding circumstances. In the persuasive decision of Chesakit v. Uganda, Cr. App. No. 95 of 2004, the Court of Appeal of Uganda stated that in determining in a charge of murder whether malice aforethought has been proved, the court must take into account factors such as the part of the body injured, the type of weapon used, if any, the type of injuries inflicted upon the deceased and the subsequent conduct of the accused person.”

30. The evidence of PW1 and PW2 portrays the accused person as a man who was out to ensure the death of the deceased. Despite being urged to stop the violence, he declined to let reason prevail ultimately shooting the deceased with the arrow. As if that was not enough, he pulled and broke the arrow head right inside the deceased’s tummy. Accompanied with the words he uttered to PW1 and PW2 that the death of that day belonged to the deceased, I am convinced that the accused intended to kill the deceased and had malice aforethought when he committed the offence. The fact that the accused wanted to kill the deceased is also confirmed by the fact that he threatened to kill PW3 for taking the deceased to hospital.

31. Although there is evidence that the accused was drunk, his state of drunkenness did not impede his reasoning and ability to control himself. He knew what he was doing and that is why he went to his home which is said to have been about 2 kilometres away to collect the bow and arrows. In his own evidence, he was sober on the material day and was at his shop. He never told the Court that he fought with the deceased because he was drunk and the defence of drunkenness and a fight only springs up in his submissions. The submissions cannot replace the accused’s own evidence that he did not encounter the deceased on the material day.

32. In light of what I have stated above, I am satisfied that the prosecution has proved the charge of murder contrary to Section 203 as read with Section 204 of the Penal code. I therefore find the accused, Benjamin Rotich, guilty of the murder of David Lomunan as charged and I accordingly convict him under Section 322(1) of the Criminal Procedure Code.

DATED, SIGNED AND DELIVERED AT KAPENGURIA THIS 12TH DAY OF JULY, 2022W. KORIR,