[2010] KEHC 2190 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT BUNGOMA

Criminal Case 61 of 2004

REPUBLIC::::::::::::::::::::::PROSECUTOR

~VRS~

STEPHEN CHEPYATORKENGERE ::::::::::::: 1ST ACCUSED

ANTONYZAKAYO KENGER::::::::::::::::::::::2ND ACCUSED

WILBERFORCE WANYONYIMULONGO ::::::::::3RD ACCUSED

RODGERS KENGERE JINJA:::::::::::::::::::::::4TH ACCUSED

EUNICE CHEPKESISCHEPYATOR ::::::::::::::: 5TH ACCUSED

RULING

The accused five (5) persons face a charge of murder contrary to section 203 as read with section 203 as read with section 204 of the Penal Code.The State called four (4) witnesses in this case.

Four witnesses testified in this case with PW4 being the only key witness.The first three were heard by my sister Judge Hon. Lady Justice Wanjiru karanja while Hon. Justice Msagha heard one witness.PW1 and PW2 were identifying witnesses while PW3 was a witness who did not witness the incident.

The facts of the case are that PW4 and her boyfriend K KB went for a party in the house of 5th accused on the night of 27th and28th August 2004at Chemuron area of Mt. Elgon District.The five (5) accused persons whom she knew before the incident were at the party.The 1st accused and his family had invited the pair for the party in his mother’s house.The 5th accused is the mother to first accused.After the party was over, the 1st accused gave the deceased and PW4 the key to the house of the 2nd accused.The two went and slept in the house. Around3. 00 a.m, when the 1st, 2nd and 3rd accused came to the house of the 2nd accused, knocked the door and PW4 opened for them.When the three came inside the hut which had only one bed, they immediately set on the deceased and beat him up after undressing him.They tortured him by burning his body with an iron rod until he died.The three accused then raped PW4 in turns.The friend of PW4 who was in the house known as Cwas also raped by the trio.The deceasedbled from the mouth.The 4th accused came into the house at the time the 1st, 2nd and 3rd accused were preparing to remove the body of the deceased from the house.The 5th accused stood outside the house at that time.The deceased body was dressed up and taken to a coffee plantation owned by one Samson Katwai.PW4 followed the 1st, 2nd, 3rd and 4th accused carrying the deceased at a distance.There was moonlight and she saw them dump the body in the coffee plantation which was across the river about one kilometer from the home of 5th accused and from the hut of the 2nd accused.PW4 said she did not know the motive of the killing.

During cross-examination, PW4 told the court that in her statement to the police, she stated that she did not identify the men who entered the house of the deceased because it was dark.Furtherthat she could not tell who was beating the deceased although she saw the 1st accused carry the hot iron rod in and out of the hut.PW4 admitted in cross-examination that she had been arrested in connection with the death of the deceased and that in her statement, she had admitted having caused the death of the deceased.

PW3 Mercy Chemtai said that on the29/08/2004around9. 00 a.m, she met the 1st and 2nd accused on her way to church.The 1st accused was holding some stacks of sugarcane and sticks while 2nd accused had a panga and also some sugarcane.It is when she was in church that she learnt that the deceased’s body had been recovered from a coffee plantation.She was also arrested in connection with the death of deceased.She denied having been at the scene of crime on the27/08/2004.

In this case, the investigating officer and the doctor did not testify.The prosecution were given several adjournments failed to avail the other witnesses whose evidence was crucial in this case.

The only witness who witnessed the incident is PW4 the girlfriend of the deceased.It came out during cross-examination that in her statement she said that she had not recognized the people who killed the deceased.She said it was dark and that the attackers had creeped into the hut quietly.She was present during the murder of the deceased and followed the accused persons (as she put it) to the coffee plantation where the body was dumped.The following morning, PW4 did not report the matter to the police.She said she went on with her household cores as usual until police arrested her.Having said that the people who killed the deceased also raped her, it beats reason why PW4 did not report the rape incident to the police.The other girl namely C who was said to have been present during the incident was not called as a witness.PW4 was not a reliable witness.Her credibility was put in question by her change of story.In her testimony in court, she completely departed from what she had told the police.She told the story of the murder in vivid details and said she saw and recognized the 1st, 2nd and 3rd accused as they came in the hut and that she saw them torture the deceased and beating him up till he died.She also saw accused 4 come inside the hut at a later stage and accused 5 stand at the door.If PW4 knew all these things, the best time to say them was when she recorded the statement to the police.Her memory at that time was still fresh.I find the evidence of PW4 unreliable.It must be treated with caution since it appears that she was an accomplice to the murder of her boyfriend.The police ought to have charged her alongside other suspects.

PW3 did not witness the incident and was not at the scene on the material day.I found her evidence worthless in this case.

It raises questions why the investigating officer did not testify and why he failed to avail other important witnesses.From the few witnesses who testified, it can be rightly concluded that the investigations were shoddy and that there was a lot of cover-up in this case.Whatever the outcome of the case, this court will not be giving a licence of innocence to the five accused persons.It will be lack of sufficient evidence resulting from poor investigations and the cover-upwhich may favour them.

In the absence of the doctor’s evidence to even certify the death of the deceased and the cause of it, I find that the charge cannot stand.Having no reliable evidence, whether direct or circumstantial, it is my finding that the evidence on record does not support the charge.

The five accused persons have no case to answer.I hereby acquit them under section 210 of the Criminal Procedure Code.They are hereby set at liberty unless otherwise lawfully held.

F. N. MUCHEMI

JUDGE

Dated, delivered and signed at Bungoma this 20th day of July, 2010 in the presence of the accused persons, Mr. Kituyi for defence and the State Counsel Mrs. Leting.

F. N. MUCHEMI

JUDGE