[2023] KEHC 24612 (KLR)

Republic v Sang alias Josphat (Criminal Case 12 of 2016) [2023] KEHC 24612 (KLR) (2 November 2023) (Judgment)

Neutral citation: [2023] KEHC 24612 (KLR)

Republic of Kenya

In the High Court at Kericho

Criminal Case 12 of 2016

JK Sergon, J

November 2, 2023

Between

Republic

Prosecutor

and

Joseph Kibet Sang Alias Josphat

Accused

Judgment

1. The Accused is charged with the offence of Murder contrary to Section 203 as read with section 204 of the Penal Code. Particulars of the offence are that, the accused on March 18, 2016 at Kiptoigoi Village in Sigowet-Soin Sub-County within Kericho County, murdered Carolyne Chebet Sang.

2. The accused pleaded not guilty to the charge and the prosecution called five (5) witnesses to prove its case.

3. Andrew Kipngetich Simotwo (Pw. 1) stated that on March 18, 2016 at 7 pm he was at home when he heard screams from the direction of Josphat Kibet's homestead, he rushed there, on arrival, it was dark. While he was there, Josphat arrived and informed them that he had killed Carolyne Chebet. He stated that he was with Edwin Koech and Hillary Ngetich. Josphat (the accused) showed them where the body was using a light from his phone, the body was in front of the house. Josphat was wild and hostile at the time, he was armed with a panga, he was still armed with a panga when he took them to see the body. He further stated that they saw the body of the deceased, lying on her back, with an injury on the neck and a lot of blood. Afterwards, they took the accused person to the nearby Anti-Stock Theft Unit and police officers from Sondu Police Station arrived and recorded their statements.

4. On cross examination Pw. 1 confirmed that he did not see Josphat kill Carolyne Chebet rather he went to the crime scene after she had been killed. He also confirmed that on the material day it was dark when he got to Josphat's homestead.

5. On reexamination Pw. 1 reiterated that he was able to see the panga using the light from the accused person's phone and that even though the body was lying on its back, he was able to see the face and recognise it as that of Carolyne.

6. Charles Cheruiyot Ngetich (Pw. 2) testified that on March 18, 2016 at around 8 pm he was at home when he heard screams from Kiptoigoi Village, he heard Josphat's mother screaming that something had happened, she said that Josphat had committed a crime. He stated that their home was about 500 meters away, he left his home and walked towards Josphat's home and found people at the homestead, who informed him that Josphat had killed a woman. The neighbours wanted to attack Josphat but he was in his house. He went into the house and found him with some people, he spoke with the accused who confessed that he had killed someone, he regretted his actions saying that the devil had made him commit the act. He accompanied the accused to the nearby Anti-Stock Theft Police Unit. He stated that he did not see who Josphat had killed, he was later informed that it was the accused person's second wife.

7. On cross-examination Pw. 2 stated that he heard screams, went to the scene and that it was dark. He confirmed that he did not witness the killing of the deceased and that he did not see the body or the panga on the material day.

8. John Sigilai (Pw. 3) stated that on 19th March, 2016 at around 8 am while he was at home, he received a call from Richard Kosgey, his neighbour in the village, who informed him that Carolyne Chebet had been killed. Carolyne Chebet was his younger sister. He was also informed that her body had been moved to Kericho District Hospital Mortuary. He stated that on 24th March, 2016 he witnessed the post mortem alongside Wesley Mutai, a police officer and a doctor. He further stated that his role was to identify the body of the deceased to the doctor. There was a deep cut on the neck of the deceased and at the end of the post mortem the doctor told them that the cut on the neck was the cause of death of the deceased.

9. David Kamuren (Pw. 4) police force number 73181 stationed at Sondu Police Station stated that on 18th March, 2016 at about 9 pm he was on duty when he was informed by the OCS that there was a report of a murder at Kiptoigoi Village in Tabaita Sub-Location. He alongside the OCS CI Robinson Mwangi and CI Christine Mwondi proceeded to the scene. On arrival at the house of the accused by police vehicle, they were ushered in by a crowd of villagers and shown the lifeless body of the deceased, Carolyne Chebet and informed that she and the accused were living as man and wife. He further stated that the body was lying in the compound and on looking at the body, he saw a deep cut on the neck, there was a lot of blood. They were informed by Pw. 1 that the accused was the person who committed the offence and Pw. 1 handed over the panga that was used. Pw. 1 informed them that before they came to the scene, the accused had the panga and they beseeched him to handover the panga after which the members of the public escorted the accused to the nearby Anti-Stock Theft Unit. As they took custody over the panga that was used to cut the deceased, it had no blood stains, they were informed that the accused had cleaned the panga. Pw. 4 produced the panga as PExh. 1. They took the deceased's body to Kericho District Hospital Mortuary and passed by the Anti-Stock Theft Unit to collect the accused person whom they took to Sondu Police Station and detained him in the cells. The clothes that the accused was wearing were blood stained a white vest and blue coloured jeans PExh. 2 and PExh. 3 respectively.

10. Pw. 4 further testified that on March 24, 2016 that he witnessed the post mortem conducted by Dr. Daisy Chebet who concluded that the cause of death was severe hemorrhage secondary to cut on major blood vessels who prepared a post mortem report marked as PMFI-4. After the post mortem he requested the doctor to extract blood samples from the deceased and the said samples as well as the vest and blue coloured jeans were taken by CI Christine Mwondi to the Government Chemist in Kisumu. The panga was not submitted as the panga had no blood. The report came back and the government chemist concluded that the blood on the vest was 100% that of the deceased, the report by the government chemist dated 8th August, 2016 was prepared by R.K Langat. Pw. 5, stated that the exhibit memo was marked as PMF1 - 5 whereas the report by the government chemist was marked as PMF1 - 6. Pw.5 identified the accused person on the dock as being the person that they picked from the Anti-Theft Stock Unit.

11. On cross examination Pw. 4 reiterated that he visited the scene of crime and that the body of the deceased was about 7 meters from the main house. He confirmed that there were many people at the scene and that the accused was not present when they arrived; he had already been taken to the Anti-Stock Theft Unit. He reiterated that Pw. 1 was holding the panga and that it did not have any blood stains. He maintained that on the material day, the accused person was wearing a vest and blue coloured jeans trousers which he was told to remove when they reached Sondu Police Station.

12. On re-examination, Pw. 4 confirmed that when he received the white vest and blue coloured jeans trousers the blood stains were fresh and visible and that the said items were taken for analysis. He conceded that the said blood stains on the exhibits, although visible, could have faded over time.

13. Dr. Victor Cheruiyot Rono (Pw. 5 ) a medical officer attached to Kericho County Referral Hospital stated that he was in court to produce the post mortem report prepared by Dr. Daisy Chebet on March 24, 2023, he confirmed that the knows Dr. Daisy Chebet and was conversant with her handwriting and signature. In the post mortem report the doctor noted that the deceased had deep cuts on the neck and a fracture on the upper part of the spine, she therefore formed the opinion that the cause of death was severe hemorrhage due to a cut on the major vessels of the neck and a fractured dislocation of the cervical spine and aspiration of the blood into the airway. Pw. 5 produced the post mortem report prepared and signed by Dr. Daisy Chebet as PExh.4.

14. On cross examination, he confirmed that he did not conduct the post mortem and that it was done by Dr. Daisy Chebet on March 24, 2016, who subsequently resigned and as a result he had not worked with her and therefore was not familiar with her handwriting. He further stated that they had a weekly rota to represent the doctors who did the post postmortems.

15. When the accused was placed on his defence, he elected to give an unsworn testimony and called one witness.

16. Joseph Kibet Sang (Dw. 1) the Accused, in his defence denied murdering Carolyne Chebet, stated that on March 18, 2016, he was tending to his maize at his home the whole day and then he went to bed. At 9 pm the village elder and the police came to his house and arrested him, whilst at the police station he was accused of having murdered Carolyne Chebet.

17. Irene Chebet Sang (Dw. 2) opted to give a sworn statement stating that the accused is her husband and that they are blessed with three children. She testified that on 18th March, 2016 she and her husband spent the day together at home tending to their maize, in the evening they slept, however, at 11pm the village elder Josiah Too came with police officers and told them that her husband was a suspect for the murder of Carolyne Chebet, his wife. She stated that she told them that she was the accused person's only wife and therefore the allegation was false. Dw. 2 maintained that their village is called Kamolok and is about 5 kilometers from Kiptoigoi and that her husband did not leave their homestead that day.

18. On cross examination, Dw. 2 confirmed that her husband was the accused person in this case and that they have been married for eleven years and that at no occasion had she fled her matrimonial home. She stated that she was not aware that the accused had a love relationship with Carolyne Chebet.

19. The sole issue for consideration is whether the prosecution proved its case against the accused beyond reasonable doubt.

20. The offence of murder is provided for in section 203 of the Penal Code that provides as follows; “Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.”

21. The offence of murder is provided for in section 203 of the Penal Code that provides as follows; “Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.” In Republic v Andrew Omwenga [2009] eKLR the court held: “It is clear from this definition that for an accused person to be convicted of murder, it must be proved that he caused the death of the deceased with malice aforethought by an unlawful act or omission – there are therefore three ingredients of murder which the prosecution must prove beyond reasonable doubt in order to secure a conviction. They are: (a) The death of the deceased and the cause of the death, (b) That the accused committed the unlawful act which caused the death of the deceased and (c) That the accused had the malice aforethought.”

22. The accused in this case was charged with the offence of murder contrary to section 203 of the Penal Code which defines murder as the unlawful killing of a person or persons with malice aforethought.

(a) Death and Cause of Death 23. In this case the death of the deceased is not disputed Pw. 5 produced a post mortem report which indicated that the cause of the death was severe hemorrhage due to a cut on the major vessels of the neck and a fractured dislocation of the cervical spine and aspiration of the blood into the airway. This finding is consistent with the witness accounts of Pw.1 who testified that on the material day, he saw the body of the deceased, she was lying on her back, with an injury on the neck and that there was a lot of blood. Pw. 3 attended the post mortem on March 24, 2016 alongside a Wesley Mutai, a police officer and the doctor, his role was to identify the body of the deceased to the doctor, he stated that there was a deep cut on the neck of the deceased. Pw. 4 a police officer testified that on the material day following the report of a murder at Sondu Police Station, he and his colleagues proceeded to the crime scene, they were ushered in by a crowd of villagers where they were shown the lifeless body of the deceased, he observed that the deceased had a deep cut on the neck and there was a lot of blood.

(b) Whether the accused committed the unlawful act which caused the death of the deceased 24. I am alive to the fact that there are no eye witness accounts of witnesses who witnessed the accused person’s assault on the deceased, however, Pw. 1 testified on the material day, he heard screams from the accused person’s homestead, on arrival, the accused person informed them that he had killed the deceased person and showed them the body of the deceased. Pw. 1 also testified that the accused was wild and hostile and was armed with a panga and was still armed with the panga when he took them to see the lifeless body of the deceased. Pw. 2 testified that on the material day the accused confessed to having killed a person, he regretted his actions. Pw. 2 escorted the accused person to the nearby Anti-Stock Theft Police Unit. In the circumstances, I find that the accused persons' defense amounted to a mere denial. Accordingly, I am satisfied that the prosecution proved beyond reasonable doubt that it was the accused person who unlawfully caused the deceased’s death.

(c) Whether the Accused Person had Malice Aforethought. 25. For the charge of murder to succeed, it must be proved that the accused person acted with malice aforethought. Section 206 of the Penal Code provides circumstances from which malice aforethought may be inferred. They are: "(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; (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 cause;© An intention to commit a felony;(d)…" In Republic v Tubere S/O Ochen [1945] 12 EACA 63 the court held that:- “an inference of malice aforethought can be established by considering the nature of the weapon used, the part of the body targeted, the manner in which the weapon was used and the conduct of the accused before, during and after the attack.” Having considered the brief facts of this case, I find that the accused person herein had malice aforethought.

26. I do take cognizance of the fact that there are no eye witness accounts to the events leading to the demise of the deceased, however, I find that circumstantial evidence points to the culpability of the deceased. In Sawe v Rep [2003] KLR 364, the Court of Appeal expressed as follows: “In order to justify on circumstantial evidence, the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of his guilt. There must be no other co-existing circumstances weakening the chain of circumstances relied upon. The burden of proving facts that justify the drawing of this inference from the facts to the exclusion of any other reasonable hypothesis of innocence remains with the prosecution. It is a burden which never shifts to the party accused.”

27. Accordingly, I find that the defence put forward by the accused person namely: Joseph Kibet Sang does not displace the prosecution’s case. The prosecution has proved its case against the accused beyond reasonable doubt and in the premises, I find the accused person guilty for the offence of murder contrary to section 203 as read with section 204 of the Penal Code. The accused person is hereby convicted.

DATED, SIGNED AND DELIVERED AT KERICHO THIS 2ND DAY OF NOVEMBER, 2023. ………………………J.K. SERGONJUDGEIn the presence of:C/Assistant - RuttohProsecutor – Mr. MusyokiAccused – Present in Prison.No Appearance for Koskey for Accused