[2023] KEHC 25590 (KLR)

Republic v Seronei & another (Criminal Case E094 of 2021) [2023] KEHC 25590 (KLR) (21 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25590 (KLR)

Republic of Kenya

In the High Court at Kapsabet

Criminal Case E094 of 2021

JR Karanja, J

November 21, 2023

Between

Republic

Prosecution

and

Joseph Kipswerem Seronei

1st Accused

Wilson Kibet Korir

2nd Accused

Judgment

1. Pursuant to the information filed herein by the Director of Public Prosecution on the 21st December 2021, the first Accused Joseph Kipserem Seronei and the second Accused, Wilson Kibet Korir are charged with murder, Contrary to Section 203 as read with Section 204 of the Penal Code, in that on the 6th December 2021 at Lelmokwo Village, Chesumei in Nandi County murdered Stanley Kipkorir Lagat.

2. It was the prosecution case that on the material date at about 2:00am a mason resident of Lelmokwo Village John Tirop (PW1), in answer to a call of nature proceeded towards the homestead of the first Accused and in the process heard some low torn children voices within the compound. He decided to enquire by jumping into the homestead over a fence. It was then that he spotted the first Accused standing nearby holding a mobile phone while in the company of another mason called Obadiah.

3. He (PW1) also spotted an injured person lying on the ground. He identified the person as the deceased, a local posho mill operator who was assisted by being taken to hospital on a vehicle belonging to a police officer, PC Yusuf Kiprotich Rop (PW3), based at Rodi Police Station in the county of Homa-Bay but was at his rural home on the material date. His assistance in that regard was sought by the first Accused and with the help of others he took the injured deceased to the hospital where he was pronounced dead on arrival.

4. A Lelmokwo village hustler, Vincent Kipkemboi (PW2), also arrived at the homestead of the first Accused on the material night and saw the deceased lying down on the ground with injuries on the head. He found the first and second Accused at the scene together with one Arap Chumba. He noted that the first Accused was armed with a club and the second Accused with a panga (machete). He then assisted them and others to have the deceased taken to hospital in the vehicle belonging to Rop (PW3).

5. The Area Chief, Phillip Kipkorir Murey (PW4), was asleep at his home when he was called on phone by the first Accused who informed him that a suspect was found at his (first Accused) sheep shed and that he had inflicted harm on the suspect/victim. He (chief) proceeded to the scene and found the deceased lying down soaked in blood and with injuries on the head before being taken to hospital in a vehicle.

6. Dr. Erick Shiverenge (PW5), of the Palm Care Sinai Hospital in Eldoret performed a postmortem on the body of the deceased after which he compiled and signed the necessary postmortem report (P.EX 1) indicating that the deceased had died from severe head injury inflicted with the use of a sharp object.

7. CPL. Venant Mganga (PW6), of the Directorate of Criminal Investigations (DCI) Nandi North carried out the necessary investigations and in the process gathered that a daughter of the first Accused was a girlfriend to the deceased and on the material date when the deceased went to see her the first Accused raised alarm that he had been raided. It was then that the deceased was attacked and assaulted by both the first and second Accused.

8. Both Accused were eventually charged with the present offence. Their respective defence was a denial with the first Accused indicating that he was a village elder and on the material night he was awakened by noises from his goat shed suggesting that the shed was being damaged by an invader. He ventured outside the house while shouting for help. Villagers rushed to his rescue even as the intruder fled in the darkness with the villagers in hot pursuit.

9. The first Accused picked his walking stick and followed the villagers. He found that the villagers had already apprehended and assaulted the intruder whom he recognized as the deceased who was on the ground writhing in pain. He (first Accused) called the Area Chief (PW4) who appeared at the scene and instructed him to fetch a vehicle to take the deceased to the hospital.

10. The first Accused contacted his neighbour (PW3) whose vehicle was used to take the deceased to hospital. He never went to the hospital but was later informed that the deceased had passed away on the way to hospital. He contended that he did not assault the deceased as he was not present when the act was committed by the villagers.

11. As for the Second Accused, he was asleep at home on the material night when he was awakened by screams from the neighbourhood. He went out of his house and saw a group of villagers heading towards the homestead of the first Accused. He followed the villagers to the homestead and on arrival found a big crowd of people surrounding a person who had been assaulted and injured and was lying on the ground. He recognized the person as the deceased whom he had not previously known. He implied that he never assaulted the deceased and contended that he arrived at the scene as a good Samaritan but was arrested and charged with the present offence.

12. Sammy Barngetuny (DW1), a milk vendor was very well known to the first Accused who was one of his milk suppliers, a former school mate, a community leader and a village elder. He arrived at the first Accused homestead on the material date to collect milk but found that an incident had occurred there. He left and returned to his home.

13. Jackson Tuwei (DW2), testified that the second Accused was a member of his church i.e. SDA Lelmokwo and had known him since he was ten (10) years old. His evidence and that of Sammy (DW1) was to show and portray the two Accused as good persons within their community. None of them (DW1 and DW2) could tell what happened on the material date with regard to the present offence as they were not at the scene.

14. A person who causes the death of another would be criminally liable for the offence of murder if the act was intentional and for the offence of manslaughter if the act was unintentional. Thus, the presence of malice aforethought completes and qualifies the offence of murder under Section 203 of the Penal Code while its absence qualifies the offence of manslaughter under Section 202(1) of the Penal Code.Herein, the Accused are charged with murder thereby raising a pre-supposition that they intended and desired to sniff life out of the deceased by their alleged unlawful act against him.

15. However, the defence they (Accused) raised indicated otherwise and suggested that they never acted unlawfully against the deceased, instead, it was fellow villagers who opined that the deceased was a criminal, pursued him, apprehended him, assaulted and occasioned him serious bodily injuries which proved fatal. Under Section 206 of the Penal Code, malice aforethought is established by evidence showing an intention to cause the death of the deceased or to do grievous harm to him.

16. The evidence from both the prosecution and the defence strongly implied that the deceased was assaulted and occasioned fatal injuries by a group of villagers after being suspected of being a livestock thief. As it were, the villagers took the law into their hands and decided to punish the deceased for his alleged misdeeds. They administered their version of Justice commonly known as “mob justice”, nay, mob-injustice against the deceased. Clearly, such kind of injustice is intended to cause the death of or do grievous harm to a theft suspect.

17. Therefore, those villagers who took the law into their own hands and assaulted the deceased occasioning him grievous harm leading to his death acted of malice aforethought hence, liable for the offence of murder, contrary to Section 203 of the Penal Code, as duly established by evidence adduced herein by the prosecution without dispute from the defence.Indeed, the postmortem report (P. EX1) by Dr. Shivelenge (PW5) indicated that the cause of death was severe head injury inflicted upon the deceased by the assailant/assailants using a sharp object/objects.

18. There being no dispute with regard to the cause of death and indeed, murder of the deceased, the only issue which feel for determination was whether the Accused or any one of them was among the villagers or mob of people who assaulted the deceased and occasioned him fatal injuries thereby committing the offence of murder.

19. The obligation to establish and prove that the two Accused participated in the unlawful transaction of assaulting the deceased lay squarely upon the prosecution on a standard of proof beyond reasonable doubt.There is no burden imposed upon an Accused Person to prove his innocence (See, Kioko Vs. Republic (1983)KLR, 289)In that regard, there was no direct evidence from any of the prosecution witness indicating that the Accused were seen in the act of assaulting the deceased jointly with other villagers at a scene which was near or within the homestead of the first Accused.

20. Most or nearly all the witnesses (PW1, PW2, PW3 and PW4) indicated that they found the two Accused and others at the scene with the deceased lying down on the ground having been assaulted and injured.Both Accused admitted being at the scene but not assaulting the deceased. Accused one however, indicated that the mob or group of villagers was attracted to the scene by his shouts of help on suspecting that an intruder had raided his goats shed. He said that the villagers pursued the intruder (i.e. the deceased) caught up with him and assaulted him. He found the deceased already assaulted and made necessary arrangements to have him taken to hospital.

21. Accused two indicated that he was at the scene as a good samaritan thereby implying that he was there to assist the first Accused and/or the deceased.Although the first Accused indicated that he was holding his walking stick at the scene, Vincent (PW2), said that he was armed with a club while the second Accused was armed with a panga (machete). These items were however, not availed and produced as evidence by the investigations officer (PW6).

22. Interestingly, the investigations officer alluded to a daughter of the first Accused being a girlfriend of the deceased and the Deceased being assaulted by both the first and second Accused when he went to visit her. However, there was no evidence, sufficient enough from the rest of the prosecution witnesses to confirm and corroborate the allegation thereby implying that the investigations officer (PW6) decided to engage in conjecture to justify the Accuseds’ arraignment in court.

23. It is clear that the prosecution did not provide any direct evidence to establish and prove the Accuseds’ alleged culpability in the murder of the deceased. None of them was seen in the act of assaulting the deceased although they were found at the scene with the rest of the villagers including those who may have participated in assaulting the deceased but were not identified to be arrested and charged.

24. However, a fact may also be proved by circumstantial or indirect evidence. The “locus classicus” on this point must surely be Republic Vs. Kipkering ARap Koske and Another16 EACA 135, where it was held that:“in order to justify 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.”

25. As was stated inRe Vs. Taylor Weaver and Donoran (1928)21 CR. APPR. 20, circumstantial evidence is often the best evidence as it is evidence of surrounding circumstances slide be intensified examination is capable of proving a proposition with the accuracy of mathematics. InTeper Vs. Re (1952) AC 488, it is held that:“Circumstantial evidence must always be narrowly examined if only because evidence of this kind may be fabricated to cast suspicion on another……………….It is also necessary before drawing the inference of the Accused’s guilt from circumstantial evidence to be sure, that there are no other co-existing circumstances which would weaken or destroy the inferences”See also, Sawe Vs. Republic (2003) KLR 364 and Ndunya Vs. Republic (2008) KLR 135)

26. In the present case, the prosecution evidence that both Accused were at the scene where the deceased was found lying down on the ground with serious injuries was never disputed. It was also not disputed that the person who triggered the entire criminal transaction against the deceased was the first Accused when he raised the alarm of having been raided in his homestead thereby prompting a horde of villagers to rush to his rescue at his homestead by pursuing the alleged raider/ intruder, apprehending and assaulting him. Unfortunately, the alleged intruder/ raider was the deceased, one of their own.

27. There was no evidence that the deceased was actually an intruder, raider or thief caught in the act in the first Accused’s homestead. Therefore, the alarm raised by the first Accused may as well have been a false alarm and had it not been raised then the deceased would not have been attacked and fatally assaulted by the villagers who included the second accused in as much as he rushed to the scene in the rescue of the first Accused rather than the deceased.

28. Even if the deceased was an intruder, raider or thief, the villagers prompted by the alarm raised by the first Accused had no right to attack and assault him. For so doing, they took the law into their own hands, became the prosecutor, jury, judge and executioner in the entire episode.The facts foregoing did provide credible and sufficient circumstantial evidence against the two Accused in linking them to the murder of the deceased as aiders and abettors, hence principal offenders in terms of Section 20(1) of the Penal Code.

29. In the upshot, this court must find and hereby finds that the prosecution has established its case against the two Accused beyond any reasonable doubt. They are hereby found guilty as charged and convicted accordingly.

Delivered and Dated this 21st day of November, 2023. J. R. KARANJAH,JUDGE