[2025] KEHC 1786 (KLR)

Republic v Tonui (Criminal Case 30 of 2017) [2025] KEHC 1786 (KLR) (6 February 2025) (Judgment)

Neutral citation: [2025] KEHC 1786 (KLR)

Republic of Kenya

In the High Court at Kericho

Criminal Case 30 of 2017

JK Sergon, J

February 6, 2025

Between

Republic

Prosecution

and

Vitalis Kibet Tonui

Accused

Judgment

1. The accused person herein is charged with murder contrary to section 203 as read with Section 204 of the Penal Code.

2. Particulars of the offence are that, the accused person on 6th day of November, 2017 at Mobego Sub Location, Kabianga Division in Kericho West Sub County within Kericho County murdered Joseph Kipkurgat Byegon.

3. The accused person pleaded not guilty to the charge and the prosecution called eight (8) witnesses to prove its case.

4. Ezekiel Kiprop Rono (Pw. 1) Senior Assistant Chief Kabianga stated that on the material day, he received a report that someone had been killed at Mobego Village, he rushed there and found that the deceased lying in a trench, he had been stabbed on the head and there was a lot of blood at the scene. He stated that they summoned the police to the crime scene, the police came, they took photographs of the crime scene and took the body of the deceased to the morgue. He stated that he convened an emergency baraza and divided people in groups to produce the suspect, they brought in one Vitalis Tonui alongside others who were interrogated and released. He stated that after they interrogated Vitalis Tonui, he fled and that he was subsequently arrested in the homestead of his in-laws. He further stated that on investigation, the police conducted a search at the house of Vitalis Tonui, the accused herein, whereby the OCS recovered a curved knife for pruning and clothes soaked in a basin under the bed. The witness was stood over as he had mentioned exhibits which were yet to be identified.

5. Janet Chepkorir Biegon (Pw. 2) a business woman and wife to the deceased stated that on the material day, she was at home when she called the deceased to bring some things but he did not answer. She stated that he had a motorcycle and she therefore thought he was on the way home. She stated that at about 9 PM, they heard women screaming, however, they held her back, told her not to go to the scene and that her husband had been killed. She stated that she did not go to the scene nor see the body of the deceased. She stated that she knew the accused person, who was their neighbour. On cross examination, Pw. 2 confirmed that the accused is their neighbour and that they did not have a disagreement or bad relationship with the accused.

6. CIP Paul Njuguna (Pw.3), the former OCS Sosiot Police Station, stated that on the material day, he received a call that there was a body discovered along Kabianga-Mobego Road. He stated that he mobilized some officers, they proceeded to the scene and that the body of the deceased was taken to Kericho Hospital Mortuary for preservation. He stated that he later received a call from the Assistant Area Chief who had held a meeting with the locals where the accused was mentioned as a suspect. The Assistant Area Chief informed him that immediately the accused’s name was adversely mentioned, he disappeared and the members of the public gave chase and that the accused fled. The Area Assistant Chief informed him that they went to the home of the accused, the public was irate and wanted to set ablaze the home of the accused and that they recovered a panga, jacket and trousers which were wet, the items were collected as exhibits and referred for further analysis at the government chemist. The witness was stood over as he had mentioned exhibits which were yet to be identified.

7. Eric Mutai (Pw. 4) a mason stated that he knew both the accused and deceased and that on the material day, he was at the home of the deceased splitting firewood when a child come with a gumboot and informed them that he was playing by the river bed when they found the gumboot. He stated that they went to the said river, where the gumboot and documents of the deceased were recovered. Pw. 4 stated that he was present when the members of the public who were agitated wanted to set ablaze the house belonging to the deceased, however, the area chief managed to restrain the irate crowd from burning the accused’s house. Pw. 4 stated that the area chief summoned the OCS who conducted a search in the accused’s house and recovered two pangas marked as MFI 1 a and 1b respectively, a jeans trouser marked as MFI 2 and brown jacket market marked as MFI 3. He further stated that all these items were wet and that it had rained that day. He stated that he recorded his statement at Sosiot Police Station. On cross examination, Pw. 4 confirmed that the gumboot recovered at the river bed was not produced in court and that there was no nexus between the gumboot and the instant offence.

8. Reuben Kipngetich Koros (Pw. 5) a mason stated that he knew both the accused and deceased and that on the material day, he was at the home of the deceased splitting firewood when he heard people saying that the deceased had been killed. He stated that he went to the river bed where the gumboot was recovered and was present when the house of the accused was searched and the following items recovered; a leather jacket, jeans trousers and pangas. He stated that he went to the police station to record his statement. On cross examination, Pw. 5 confirmed that the gumboot recovered at the river bed was not produced in court.

9. CIP Paul Njuguna (Pw.3) was recalled to the witness stand for further examination in chief, he stated that on 9/11/2017 a post mortem was conducted in the presence of the family of the deceased. He stated that on 11/11/2017 he received a report that a suspect had been arrested at Kaptumo in Nandi. He stated that on 12/11/2017 he received information that there were documents of the deceased that had been recovered and that the members of the public wanted to destroy the suspects house, however, the crowd was restrained. He stated that he proceeded to the suspect’s house where he recovered a jacket, jeans trouser and two pangas. He stated that the following documents of the deceased were recovered by the river bank by members of the public; wallet marked as MFI 4, a copy of ID marked as MFI 5, electors card marked as MFI 6, ATM Card marked as MFI 7 and orange SIM Card marked as MFI 8. He stated that there were some documents belonging to the deceased that were missing, a SIM Card and SACCO Card that were recovered from the accused’s trousers. The documents that were recovered were taken to the government chemist for analysis. On cross examination, he confirmed that he did not obtain a search warrant to search the accused’s house and that the accused was not present during the search.

10. Richard Kimutai Langat (Pw. 6) a government chemist analyst stated that on 15/11/2017 under CPL Kennedy Mukore from Sosiot Police Station, he received a police exhibit memo with the following items; a rusted blood stained panga welded at the tip with black handle marked as item A, blood sample of the deceased in a vial marked as item B, blue jeans trouser of the accused marked as item C, light brown muddy trouser of the deceased marked as item D, blood sample of the accused in a vial marked as item E, black and white striped socks marked as item F, panga with black handle marked as item G and a brown leather jacket marked as item H. He prepared a report dated 16/7/2019 and produced it as P.Exh. 9 and the exhibit memo as P.Exh. 10. In the report his findings were that the DNA profile generated from the welded panga item A and blue jeans trouser belonging to the accused item C matched the DNA profile of the deceased. He stated that the DNA of the accused had no relationship with the samples produced. On cross examination, Pw. 6 confirmed that he received samples from Sosiot Police Station and that were labelled. He confirmed that the welded panga generated a DNA profile. He reiterated that the DNA of the accused had no relationship with the samples produced.

11. Dr. Wesley Rotich (Pw. 7) attached to Londiani Sub County Hospital stated that he conducted an autopsy on the body of the deceased on 9/11/2017 and formed the opinion that the cause of death as severe head injury due to trauma to the head by a sharp object and produced the post mortem report as PExh.11. On cross examination, Pw. 7 stated that the body was identified by the police and family members.

12. Kipyegon Arap Cheres (Pw. 8) the father to the deceased and a retired driver testified that he was at home on the material day, the following day, he learnt that the deceased had been killed by thugs and that he was taken to the crime scene where his son was murdered. He stated that he visited the hospital mortuary and identified the deceased’s body to the mortician; the deceased had a cut wound on the head.

13. Section 211 of the Criminal Procedure Code was complied with, the accused person opted to give a sworn statement.

14. Vitalis Kibet Tonui (Dw. 1) stated that he was aware that he was in court because he was charged with the offence of murdering the deceased. He narrated that on the material day he was out picking tea at Chagaik Tea Estate from 8 am to 6 pm. He stated that he arrived home at about 7 pm, he took supper and slept. He stated that the following morning, his younger brother Victor Kipngeno came to his house and told him that he had overslept and yet there were screams the previous night and that the deceased had been murdered the previous night. He stated that he was shocked upon learning of the demise of the deceased. He further stated that he and his children went to Kaptumo to attend a graduation ceremony of initiates. He stated that he was apprehended at Kaptumo as a suspect in respect to the murder of the deceased and that it was his first time to see the exhibits in court.

15. On cross examination, Dw. 1 confirmed that he did not go into hiding in Nandi, rather, he had gone to attend the graduation of initiates.

16. At the close of the defence case, Mr. Kiletyen, the Learned Counsel representing the accused stated that he would file written submissions on behalf of the accused person, however, at the time of writing this judgment he had not filed any submissions, therefore this court considered the material on record to arrive at a fair and just determination.

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

18. 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.”

19. The accused person 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 20. In this case the death of the deceased person is not disputed, several prosecution witnesses testified that on the material day the deceased was found dead and he had sustained fatal injuries on his head. Pw. 7 stated that he conducted an autopsy on the body of the deceased on 9/11/2017 and formed the opinion that the cause of death as severe head injury due to trauma to the head by a sharp object and produced the post mortem report as PExh.11 which report was adopted by this court.

b. Whether the accused committed the unlawful act which caused the death of the deceased 21. This court is cognizant of the fact that none of the prosecution witnesses witnessed the assault on the deceased or placed the accused at the crime scene, there is therefore no direct evidence linking the accused to the unlawful act that caused the death of the deceased, however, having considered the facts of this case, it is the finding of this court that the prosecution’s case is founded on circumstantial evidence that points to towards the culpability of the accused. In the case of Ahamad Abolfathi Mohammed and Another v Republic [2018] eKLR, the Court of Appeal had this to say on circumstantial evidence: “ However, it is a truism that the guilt of an Accused person can be proved by either direct or circumstantial evidence. Circumstantial evidence is evidence which enables a court to deduce a particular fact from circumstances or facts that have been proved. Such evidence can form a strong basis for proving the guilt of an Accused person just as direct evidence.”

22. It is further the finding of this court that there is forensic evidence linking the accused to the instant offence, Pw. 6 a government chemist testified that he analyzed samples that were sent to the government chemist for forensic analysis, he prepared a report P.Exh. 9 and that his findings were that the DNA profile generated from the welded panga item A and a blue jeans trouser belonging to the accused item C matched the DNA profile of the deceased. The said items were recovered in a house belonging to the accused. The accused person mounted a defence based on an alibi, however, it is the finding of this court that the same 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. 23. For the charge of murder to succeed, it must be proved that they 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 caused;© An intention to commit a felony;(d)…" Having considered the brief facts of this case, I find that the accused person herein had malice aforethought, which can be inferred from his actions on that fateful day including and not limited to evading lawful custody. In the case of Republic v Tubere S/O Ochen [1945] 12 EACA 63 the East African Court of Appeal set out the circumstances in law under which malice aforethought can be inferred: “a. The nature of the weapon used (whether lethal or not), b. The part of the body targeted (whether vulnerable or not), c. The manner in which the weapon is used (whether repeatedly or not) and d. The conduct of the accused before, during and after the attack.”

24. Accordingly, I find that the defence put forward by the accused person namely: Vitalis Kibet Tonui 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 6TH DAY OF FEBRUARY, 2025. ………….…………….J.K. SERGONJUDGEIn the presence of:C/Assistant - RutohP/Counsel – MaunduAccused – Present in PersonSang for the Accused