[2019] KEHC 4796 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT ELDORET

CRIMINAL CASE NO. 22 OF 2015

REPUBLIC.........................................................................PROSECUTOR

VERSUS

VICTORIA JEPKEMEI LETING...........................................ACCUSED

RULING

[1] The Information filed herein on 17 March 2015 charged that the accused person herein, Victoria Jepkemei Leting, had committed the offence of murder and therefore contravened Section 203 as read with Section 204 of the Penal Code, Chapter 63 of the Laws of Kenya. The particulars were that on the 26th day of February 2015 at Chebarbar Junction in Chepterit Location in Nandi County, she murdered Benjamin Kimutai Lagat. The accused person denied those allegations and thereby put the Prosecution to proof thereof. The Prosecution called 6 witnesses who testified herein between 11 July 2018 and 13 May 2019.

[2] At the close of the Prosecution Case, it a requirement of the law that the Court be satisfied that a prima facie case has been established by the Prosecution before the accused person can be placed on her defence to answer the Charge against her. Hence, in Ramanlal Trambaklal Bhatt -Vs- Republic [1957] EA 332 it was held thus:

Remembering that the legal onus is always on the prosecution to prove its case beyond reasonable doubt, we cannot agree that a prima facie case is made out if, at the close of the prosecution, the case is merely one:-

“Which on full consideration might possibly be thought sufficient to sustain a conviction.”

This is perilously near suggesting that the court would not be prepared to convict if no defence is made, but rather hopes the defence will fill the gaps in the prosecution case.

Nor can we agree that the question whether there is a case to answer depends only on whether there is:-

“some evidence, irrespective of its credibility or weight, sufficient to put the accused on his defence.”

A mere scintilla of evidence can never be enough: nor can any amount of worthless discredited evidence. It is true, as Wilson, J., said, that the court is not required at that stage to decide finally whether the evidence is worthy of credit, or whether if believed it is weighty enough to prove the case conclusively: that final determination can only properly be made when the case for the defence has been heard. It may not be easy to define what is meant by a “prima facie case,” but at least it must mean one on which a reasonable tribunal, properly directing its mind to the law and the evidence could convict if no explanation is offered by the defence.”

[3] Section 203 of the Penal Code, Chapter 63 of the Laws of Kenya, is explicit that any person who, of malice aforethought, causes the death of another person by an unlawful act or omission is guilty of murder. Thus, the ingredients that the Prosecution needed to show, albeit on a prima facie basis are: the fact of death; that the death was caused by the Accused by an unlawful act; and malice aforethought on the part of the Accused Person. What constitutes malice aforethought is set out in Section 206of the Penal Code thus:

Malice aforethought shall be deemed to be established by the 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.

[4] With the foregoing in mind, I have carefully considered the evidence presented herein by the Prosecution. That evidence shows that PW1, Paul Machii Birgen (PW1) and his wife, Rael Cherono Arusei (PW2) had gone to Julius’ Bar in Chebarbar Junction to look for one Esther Ngetich who had promised them financial assistance in respect of one of their children who had qualified to go to secondary school. They explained that it was in that connection that they found themselves at Julius’ Bar; and that having looked around and failed to see the said Esther Ngetich, they opted to leave immediately. However, before leaving, PW1borrowed some Kshs. 100/= from his wife to buy some alcohol to take home with him; and that it was in that process that deceased, Benjamin Kimutai Lagat, also known to them as Maina, confronted PW2, demanding to be paid a debt of Kshs. 100/= owed to him by PW2.

[5] It was further the evidence of PW1 and PW2 that the deceased, who was visibly drunk, confronted PW2 with a stick and a bottle in the other hand and menacingly demanded immediate settlement of the debt she owed him, thereby causing commotion in the bar. That it was that juncture that the accused person, an employee at the bar who was locally known by the name Sussy, intervened and pleaded with the deceased for patience and asked him to wait to be paid the following day. In the course of that intervention PW1and PW2 found an opportunity to exit the bar. PW3 who also happened to be in the same bar at the time, told the Court that, as the accused was removing the deceased from the bar, they both fell on a table; and that he approached them and separated them as the deceased was holding onto the accused and was not letting her go. That he thereafter noted that Maina was shivering and he helped him get out of the bar and placed him on the ground, from where he was taken to Kapsabet Hospital. He concluded his evidence by stating that he did not know what caused the deceased death; adding that at no time did he see the accused hit the deceased.

[6] The father of the deceased, Francis Kiplagat Ruto (PW4), was one of the persons who identified the deceased’s body to the doctor for purposes of postmortem examination; while PW5, CI Sylvester Olale, was the investigating officer in the matter. His evidence was that the murder report had been made to the Kapsabet Police Station by one Obadiah Kiprotich and Joyce Cheptoo; and that the body had been found lying near San Zero Bar. He caused the accused to be charged with the offence of murder at the completion of his investigations. The Prosecution’s last witness was Dr. Kennedy Otieno Mayanga (PW6) of Kabsabet County Referral Hospital. He produced the Postmortem Report on behalf of Dr. Momanyi who was away on further studies outside the country. According to that report the cause of death of the deceased was respiratory failure due to lack of oxygen. It was also noted that the neck was twisted and that there was cyanosis of the tongue, upper limbs and the lungs. The other body systems and organs were normal save for a chronic wound on the left knee. In cross examination, PW6 was of the opinion that the twisting of the deceased neck could have been due to manual strangulation, leading to asphyxia.

[7] From the foregoing therefore, since PW1 and PW2 left the bar before any physical confrontation took place between the accused and the deceased, the only eye witness to the occurrence was PW3. According to his testimony, as the accused was dragging the deceased out of the bar, they both fell on a table; and that it was the deceased who was the first to fall and that he did so while holding the accused by her clothes. He was categorical that the accused did not fall onto the deceased on the table and added that he did not see the accused hit or beat the deceased. He accordingly conceded that he did not know what caused the deceased’s death.

[8] The Investigating Officer mentioned Obadiah Kiprotich and Joyce Cheptooas the people who reported the death toKapsabet Police Station.According to that report, the body had been found lying near San Zero Bar.The evidence ofPW3was to the effect that the bar in which the accused was working was known asJulius’ Bar. He gave no indication that it was the same bar called San Zero Bar. Thus, the Prosecution evidence did not rule out any intervening circumstance from the time PW3 left the deceased and the time of his death and/or intervention by Obadiah Kiprotich and Joyce Cheptoo. It is noteworthy that neither Obadiah Kiprotich nor Joyce Cheptoo were called as witnesses herein.

[9] There was, therefore, no evidence that the accused was responsible for the deceased’s twisted neck; or the respiratory failure that he evidently experienced, and which ended up terminating his life. It is noteworthy that in cross-examination, PW6 explained that the twisting of the neck was likely caused by manual strangulation, leading to asphyxia. He further conceded that he could not rule out the possibility that the state of drunkenness in which the deceased was said to be in could have caused his death. PW6 further testified that samples were taken from the body of the deceased for further analysis but no result was availed to the hospital that could aid in ascertaining the presence of other toxins, other than alcohol, in the body of the deceased.

[10] In the light of the foregoing, it cannot be said that the Prosecution has made out a prima facie case against the accused person. There was no evidence of malice aforethought; there was no proof that the accused hit or beat the deceased; or that she held the deceased’s neck or physically twisted it. To the contrary, PW3’s evidence was that she did not hit or beat the deceased at all. In the premises, I am not satisfied that a prima facie case has been made out herein by the Prosecution against the accused to warrant her being placed on her defence. Accordingly, I find the accused not guilty of the offence of murder and acquit him thereof pursuant to Section 306(1) of the Criminal Procedure Code.

It is so ordered.

DATED, SIGNED AND DELIVERED AT ELDORET THIS 17TH DAY OF JULY, 2019

OLGA SEWE

JUDGE