[2022] KEHC 10038 (KLR)

Republic v Ruto & another (Criminal Case 81 of 2017) [2022] KEHC 10038 (KLR) (19 May 2022) (Judgment)

Neutral citation: [2022] KEHC 10038 (KLR)

Republic of Kenya

In the High Court at Kabarnet

Criminal Case 81 of 2017

WK Korir, J

May 19, 2022

Between

Republic

Prosecution

and

Flomena Jerop Ruto

1st Accused

Catherine Terike Toroitich

2nd Accused

Judgment

1. The 1st Accused Person, Flomena Jerop Ruto, and the 2nd Accused Person, Catherine Terike Toroitich, have been charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars of the offence state that on the 11th May, 2016 at Kaplamoi Village, Sirwa Location within Mogotio Sub-County in Baringo County, the accused persons jointly murdered Kigen Chemitei.

2. The accused persons pleaded not guilty to the charge and the matter was set down for hearing.

3. The prosecution called three witnesses in support of its case. Ezra Kibichii Lagat testified as PW1 and told the Court that on 11th May, 2016 at around 3:00pm, he was helping Kigen Chemitei (hereinafter simply referred to as the deceased) to plant maize. It was then that he saw Catherine (hereinafter simply referred to as A2) approach the deceased. When A2 reached where the deceased was, she put down the panga she had and started assaulting the deceased with a stick.

4. PW1 proceeded to testify that A2 struggled with the deceased and they fell down. It was then that Flomena (hereinafter simply referred to as A1) arrived and took the panga and cut the deceased on the head. Thereafter the accused persons ran away.

5. The witness told the Court that A1 is the daughter of A2. Further, that A2 had a boundary dispute with the deceased. PW1 also stated that they took the deceased to his home and reported the incident to the Assistant Chief who later visited the deceased at his home. The witness told the Court that on 12th May, 2016 the body of the deceased was taken to the mortuary and he later attended post-mortem on the body of the deceased.

6. When cross-examined by counsel for A1, PW1 told the Court that he was a little far from where the incident took place and he did not hear the conversation between A2 and the deceased and he could not therefore tell why the two fought. The witness testified that the deceased removed sticks that had been used on the boundary. PW1 told the Court that A1 did not come with any weapon but picked the panga that was nearby and used it to cut the deceased.

7. During cross-examination by counsel for A2, the witness confirmed that A2 confronted the deceased after he started uprooting the boundary sticks. PW1 stated that the deceased had pinned A2 down at the time A1 cut him with the panga.

8. PW2 David Kigen told the Court that on 11th May, 2016, at 8:00am, he was with Ezra, Sila and the deceased. They were planting maize for the deceased. At about 3:00pm, he saw the deceased going towards A2’s farm which shared a boundary with the deceased’s farm. He then saw the deceased hold A2 and they started struggling. His testimony was that A2 had a jembe as she was cultivating her shamba. According to PW2, A1 came from another part of A2’s farm with a panga. At this point the deceased and A2 were on the ground. That is when he saw blood flowing from the deceased and he decided to run away.

9. PW2 stated that the following day he went to the deceased’s house where he heard that the deceased had died and saw police officers taking away his body. PW2 told the Court that he had known A2 since his childhood as they were classmates. He told the Court that he was born in 1975. The witness confirmed having known A1 for over ten years and that he had no grudge with her.

10. Upon cross-examination by counsel for A1, PW2 told the Court that Ezra was not far from where he was. The witness told the Court that he did not know what caused the deceased to start fighting with A2. He reiterated that he did not go to the scene but instead ran away. PW2 confirmed that the deceased had a stick and he was pinning A2 to the ground when A1 went and cut the deceased with a panga. His testimony was that the deceased came with the panga.

11. He stated on cross-examination that he only saw Mzee Kigen with a stick and he did not go to the scene. Further, that he saw Flomena throwing a panga at the deceased during the time the deceased was holding A2 to the ground. According to PW2, A2 was trying to get out of the deceased’s grasp but the deceased was beating her using fists. The witness testified that he only heard the deceased say he was dying and did not hear anything else.

12. In response to questions put to him by counsel for A2, PW2 testified that the fight between the deceased and A2 took place next to the boundary inside A2’s maize farm. Contrary to his evidence during cross-examination by counsel for A1, PW2 testified that A1 was herding cows with a stick. He then changed to state that A1 had a panga and it was the deceased who had a stick. According to PW2 it was the deceased who started assaulting A2 with a stick before pinning her on the ground and sitting on her chest as she tried to free herself.

13. Isaac Kiplagat Chebor testified as PW3 and told the Court that on 18th May, 2016 at Eldama Ravine Hospital mortuary, he identified the body of deceased who was his uncle for post-mortem purposes. He testified that the post-mortem was performed by the doctor in the presence of a police officer and the deceased’s son by the name Amos. Further, that there was an injury running from one of the ears to the back of the head.

14. I took over this matter after the prosecution had closed its case and the accused persons had been placed on their defence. A1 testified as DW1. She told the Court that on 11th May, 2016 she was looking after their cows as A2 who is her mother was weeding maize when the deceased went and damaged the fence. When her mother asked him why he was pulling down the boundary fence, he starting assaulting her. A1 told the Court that she went to the rescue of her mother as the deceased had pinned her down and was strangling her.

15. It was A1’s testimony that she tried pulling the deceased away but he instead slapped her. She raised alarm and even called Ezra who was assisting the deceased to plant maize but no one responded. She found a panga nearby and used it to hit deceased. That is when the deceased released her mother. They proceeded home and left the deceased shouting at the scene. A1 told the Court that her mother lost consciousness for about 20 minutes and peed on herself.

16. A1 testified that in the evening Ezra went to their home and told them that the deceased had died and they should disappear lest they be attacked by members of the public. It was then that they went to Ravine Police Station where they reported the incident. They were arrested and later charged. A1 testified that she had no intention of killing the deceased and was only trying to rescue her mother. She concluded her testimony by telling the Court that she was 17 years at the time of the incident.

17. When she was cross-examined by the prosecutor, A1 stated that she slapped the deceased with a panga. Her evidence was that when her mother reached where the deceased was and asked him why he had pulled down the fence, the deceased told her that he would destroy the entire fence and there was nothing they could do to him. She stated that the deceased had a jembe which he was using to weed his maize. Her testimony was that she just found herself picking the panga which was about 2 metres from where her mother had been pinned down by the deceased.

18. In response to questions put to her by counsel for A2, A1 stated that the deceased used to pull down the fence every other year so that the cows would enter their farm. Further, that the deceased had beaten her mother for about 30 minutes and she realized he would not leave her mother alone.

19. A2 gave evidence as DW2. She told the Court that on the material day she was weeding her maize at her farm at Kaplamoi when she saw the deceased pull down the common boundary fence. When she asked him why he was doing so, he slapped her and she fell down. He then held her neck and started strangulating her while sitting on her and she did not see what happened thereafter. A2 testified that the deceased had a panga. She stated that she was using a jembe to work on her land. Her testimony was that the deceased attacked her on her land.

20. At the conclusion of the trial, the parties filed and exchanged written submissions. The submissions shall be taken into account in the determination of this case.

21. Although the prosecution failed to call the investigating officer, the parties do not dispute the fact that the deceased died as a result of a panga cut inflicted on his head by A1. This is confirmed by the post-mortem report that was produced as an exhibit with the consent of the parties on 22nd March, 2021. In the circumstances, the only question to be answered in this case is whether any or both of the accused persons committed the offence of murder as charged.

22. Section 203 of the Penal Code, Cap. 63 defines the charge 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.

23. In order to establish the offence of murder, the prosecution must prove the cause of death, that the act of commission or omission causing the death was by the accused, and that the act of commission or omission was accompanied by malice aforethought.

24. As already stated, it is not disputed that it was the cut on the head of the deceased that led to his death. The evidence adduced by the prosecution and A1 point to the fact that it was A1 who inflicted the injury on the deceased. There is therefore a connection between the actions of A1 and the death of the deceased. The prosecution has therefore established that it was A1 who caused the death of the deceased.

25. The next question is whether the prosecution has established malice aforethought. Section 206 of the Penal Code defines malice aforethought as follows: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.

26. The evidence adduced at the trial by PW1 is to the effect that A2 put down the panga she had and started to beat the deceased with a stick that was one metre long. A struggle ensued and the two fell down and that is when A1 arrived and took the panga and cut the deceased on the head after which the two accused persons ran away. PW2 was categorical that it was the deceased who first attacked A2.

27. On the nature of injuries sustained by the deceased, the post-mortem report revealed that the deceased sustained a cut on the occipital area, linear extending to the scalp, skull, meningeal up to the brain with massive hemorrhage. The post-mortem report indicates that the cause of the death was intracranial and extracranial hemorrhage arising from cut wound to the skull. The post-mortem report confirms the evidence of the prosecution and A1 that the injury was inflicted once and not repeatedly. The injury was, however, serious and this is evidenced by the fact of the death which happened on the same date. It is also observed that A2 did not sustain any injuries unlike the deceased who sustained fatal injury.

28. A1 in her defence admitted that she hit the deceased using a panga. According to A1, her action was impulsively driven by the urge to rescue her mother who was being strangulated by the deceased. Counsel for A1 asked this Court to find that she had no malice aforethought and only reacted when faced with an extreme situation where her quick judgment saved the life of her only parent. According to counsel for A1, his client had no intention of causing death. Further, that the Court should note that the deceased and the accused persons were relatives and the accused persons, who are out on bond, have since been living with the surviving relatives of the deceased having reconciled.

29. Looking at the evidence adduced in this case, I agree with A1 that she did not have any intention of killing the deceased. There was no evidence adduced to contradict her averment that she only resorted to picking the panga and hitting the deceased with it because she wanted to save her mother who was facing danger in the hands of the deceased. The unrebutted testimony of A1 is that she had tried several other ways of saving her mother including asking PW1 for help but that had not been successful.

30. It is apparent that A1 has raised the defence of self-defence. The defence of self-defence, is only available where the accused person was not the aggressor. Where the deceased was the aggressor, the accused person may have indeed been reacting to the attack against him or her by the deceased. The evidence adduced at the trial points to the fact that the deceased is the person who first attacked A2. This would invite the Court to interrogate whether A1’s actions were within the confines of self-defence.

31. The defence of self-defence is available where the accused uses necessary, reasonable and proportionate force to ward off imminent attack on self or another. This is codified in Section 17 of the Kenyan Penal Code. In Lucy Mueni Mutava v Republic [2019] eKLR the Court of Appeal discussed the doctrine of self-defence as follows:“13. Equally, her defence of self defence does not hold water. This is because as was correctly observed by the trial court there was no mention that the deceased had attempted or threatened to attack the appellant with the panga that she alleged he was armed with. In point of fact, in her own testimony, the appellant stated that the deceased“…he got hold of me and pushed me slowly to my house so as to make love.”Besides, the multiple cut injuries she inflicted on the deceased at the back of his neck which led to the spinal cord being severed, in our view, was way excessive and negated any defence of self defence, if any, in light of the surrounding circumstances. See Racho Kuno Hameso vs. R [2014] eKLR.14. Our position is further fortified by the case of Victor Nthiga Kiruthu & another vs. R [2017] eKLR wherein this Court while discussing self defence stated:“The principles that have emerged from these and other authorities are as follows:-(i)Self defence, as the term suggests, is defence of self. It is the use of force or threat to use force to defend one self, one’s family or ones property from a real or threatened attack. Self defence is therefore a justification in the application of force recognized by the common law.(ii)The law generally abhors the use of force or violence, but there are instances when a person is justified in using a reasonable amount of force in self defence if he or she believes that the danger of bodily harm is imminent and that force is necessary to repel it, meaning that the force must be necessary and that it must be reasonable.(iii)It is not necessary, however, for there to be an actual attack in progress before the accused may use force in self defence. It is sufficient if he apprehends an attack and uses force to prevent it.(iv)The danger the accused apprehends however must be sufficiently specific or imminent to justify the action he takes and must be of a nature which could not reasonably be met by mere pacific means.(v)What amounts to reasonable force is a matter of fact to be determined from evidence and the circumstances of each case. [Emphasis added]15. All in all, we, like the trial court are satisfied that the appellant’s actions and more specifically the vicious nature she attacked the deceased and the resulting injuries are indicative of malice aforethought on her part as defined under Section 206 of the Penal Code…”

32. Again, in Ahmed Mohammed Omar & 5 others v Republic [2014] eKLR, the Court of Appeal outlined the ingredients of the defence of self-defence as follows:“What are the common law principles relating to self defence? The classic pronouncement on this issue and which has been severally cited by this Court is that of the Privy Council in Palmer v R[1971] A.C. 814. The decision was approved and followed by the Court of Appeal in R v McINNES, 55 Cr. App. R. 551. Lord Morris, delivering the judgment of the Board, said:“It is both good law and good sense that a man who is attacked may defend himself. It is both good law and common sense that he may do, but may only do, what is reasonably necessary. But everything will depend upon the particular facts and circumstances. …..Some attacks may be serious and dangerous. Others may not be. If there is some relatively minor attack, it would not be common sense to permit some act of retaliation which was wholly out of proportion to the necessities of the situation. If an attack is serious so that it puts someone in immediate peril, then immediate defensive action may be necessary. If the moment is one of crisis for someone in immediate danger, he may have to avert the danger by some instant reaction. If the attack is over and no sort of peril remains, then the employment of force may be way of revenge or punishment or by way of paying off an old score or may be pure aggression. There may be no longer any link with a necessity of defence. ….. The defence of self-defence either succeeds so as to result in an acquittal or it is disproved, in which case as a defence it is rejected. In a homicide case the circumstances may be such that it will become an issue as to whether there was provocation so that the verdict might be one of manslaughter. Any other possible issues will remain. If in any case the view is possible that the intent necessary to constitute the crime of murder was lacking, then the matter would be left to the jury.”According to ARCHBOLD – Criminal Pleading, Evidence and Practice 2002, paragraph 19-42, the test of whether force used in self defence was reasonable is not purely objective.“There is no rule of law that a man must wait until he is struck before striking in self defence.” R v Deana, 2 Cr. APP. R. 75, CCA.The above Common Law principles have been applied locally in several decisions.”

33. The Court of Appeal continued to discuss the doctrine as follows:“In Robert Kinuthia Mungaiv Republic(Supra), the Court held that it is a doctrine recognized in East Africa that excessive use of force in the defence of the person or property, whether or not there is an element of provocation present, may be sufficient for the Court to regard the offence not as murder but as manslaughter. But if the defence of self-defence is upheld, a conviction for murder cannot be sustained…In Beckford v Ford[1987] 3 ALL ER 425, the appellant, a police officer, was a member of an armed posse investigating an armed man who was terrorizing and menacing his family at their house. When the police arrived at the house the appellant ran out of the back of the house, pursued by police officers, including the appellant. The Crown alleged that the man was unarmed and was shot by the appellant and another police officer after he had been discovered in hiding and had surrendered. The appellant claimed that the man had a firearm, had fired at the police and had been killed when they returned the fire.The appellant was convicted for murder. His appeal to the Court of Appeal of Jamaica, contending that he was entitled to rely on the defence of self-defence if he had an honest belief that he had been in danger was rejected. The Court of Appeal held that the appellant’s belief that the circumstances required self-defence had to be reasonably and not merely honestly held. The appellant appealed to the Privy Council. The Privy Council, in allowing the appeal, held that if a plea of self-defence was raised when the appellant had acted under a mistake as to the facts, he was to be judged according to his mistaken belief of the facts regardless of whether, viewed objectively, his mistake was reasonable. Accordingly, the test for self-defence was that a person could use such force in the defence of himself or another as was reasonable in the circumstances as he honestly believed them to be. In other words, their Lordships established that self-defence depends on a subjective test, rather than an objective one.”

34. The other factor which will determine whether the defence of self-defence will be accepted by the court is the nature of the force used in view of the particular circumstances of the case. The reasonableness and the proportionality of the force used is determined by considering the kind of weapon used, the manner in which it was used, and the injuries inflicted on the deceased. The post-mortem report revealed that the deceased sustained a cut on the occipital area, linear extending to the scalp, skull, meningeal up to the brain with massive hemorrhage. The cause of the death was fingered as intracranial and extra cranial hemorrhage arising from the cut to the skull. The post-mortem report affirms the testimony of A1 that she only cut the deceased once.

35. Although A1 did not sustain any injury herself, her testimony that A2 was in imminent danger was confirmed by A2. Indeed, A1 stated that A2 passed out for 20 minutes and had peed on herself. A2 herself testified that she blacked out. This unrebutted evidence confirms that the life of A2 was at risk. The evidence of A1 is that when she tried pulling the deceased from her mother, he responded by slapping her and continued strangulating A2. Her screams were not responded to and she impulsively picked the panga which was not far from where the deceased was assaulting her mother.

36. The evidence that was adduced at the trial clearly supports the defence’s case that the deceased was in the process of injuring A2 when A1 who is A2’s daughter went to her rescue. The death of the deceased therefore occurred owing to the danger that A2 was facing. The defence of self-defence as raised by A1 is therefore applicable in the circumstances.

37. Having found that the ingredients of the defence of self-defence have been met by A1, I need not consider the defence of provocation as raised by A1.

38. As concerns A2, I find that she did not play an overt role in the death of the deceased. After she was attacked by the deceased, she did not hit him or injure him. Even if A1 had been found guilty of murder or the lesser charge of manslaughter, I do not see how A2 could have been found guilty of any of those charges.

39. Although A2 was jointly charged with A1, the doctrine of common intention as enacted in Section 21 of the Penal Code does not apply. The Court of Appeal reiterated the ingredients of common intention in Stephen Ariga & another v Republic [2018] eKLR as follows:“The ingredients of common intention were enunciated in Eunice Musenya Ndui versus Republic, Criminal Appeal No. 534 of 2010 (2011) eKLR as follows:-(1)There must be two or more persons;(2)The persons must form a common intention;(3)The common intention must be towards prosecuting an unlawful purpose in conjunction with one another;(4)An offence must be committed in the process;(5)The offence must be of such a nature that its commission was a probable consequence of the prosecution of the unlawful purpose.”

40. There is no evidence on record that the accused persons had purposed to go and attack and kill the deceased. The actions of A1 were spontaneous and dictated by circumstances that were instigated by the deceased’s actions. There is no evidence that the accused persons held any discussion on what to do with the deceased. The accused persons did not set out to prosecute an unlawful purpose. Their actions were a reaction to the deceased’s conduct.

41. In light of what I have stated in this judgement, it follows that the prosecution has failed to discharge its burden of proof. The accused persons are not guilty of the offence charged and each one of them is acquitted as required by law.

DATED, SIGNED AND DELIVERED AT KABARNET THIS 19THDAY OF MAY, 2022. W. KORIR,JUDGE OF THE HIGH COURT