[2022] KEHC 11710 (KLR)

Republic v Yegon & another (Criminal Case 44 of 2016) [2022] KEHC 11710 (KLR) (5 May 2022) (Ruling)

Neutral citation: [2022] KEHC 11710 (KLR)

Republic of Kenya

In the High Court at Nakuru

Criminal Case 44 of 2016

TM Matheka, J

May 5, 2022

Between

Republic

Prosecutor

and

Victor Yegon

1st Accused

Vincent Kaptich

2nd Accused

Ruling

1. The accused persons Victor Yegon and Vincent Kaptich are jointly charged with the offence of Murder contrary to section 203 as read with section 204 of the Penal Code. It is alleged that on the 25th day of July 2016 at Keringet Location in Kuresoi Sub- County within Nakuru County, they murdered Jackson Kipruto Rotich.

2. On August 15, 2016, the charge was read to the accused persons and they each pleaded not guilty.

3. On January 25, 2020, trial commenced and the prosecution presented four (4) witnesses in support of its case.

4. PW1, Noah Yegon, testified that he and Jackson Kipruto Rotich the deceased herein were workmates. That on July 23, 2016 at 5. 00p.m the deceased informed him that he was going to meet a girl. He (PW1) did not know the girl’s name. He escorted him up to the office of the DC at Keringet then he went back to work. That the next day on July 24, 2016 the deceased worked till noon. He then borrowed PW1’s phone and rang one Judy. They spoke then he told him that they had agreed to meet at 6:00pm at Judy’s place. He then left for Judy’s place.

5. That on July 25, 2016 the deceased did not report to work. In the evening PW1 heard that a person had been killed at Keteni’s place. He recalled that Jackson had told him that the Judy he was going to see lived at Keteni’s place. He suspected that it was Jackon who had been killed. He told no one until the next day when he shared his fears with Wesley, their employer. Wesley made a phone call and confirmed that indeed it was Jackson who had been killed. He then went and recorded a statement. He said the deceased told him that Judy lived at Keteni’s place. He did not know what kind of relationship there was between the deceased and Judy.

6. PW2, Simon Chepkwony, was also a workmate of PW1 and the deceased. He testified that onJuly 24, 2016 at about 7:00 p.m. while at work with his colleagues namely; Noah, Jackson, Wesley Kitur the deceased had told them that he had a girlfriend at Keteni’s place who he was going to see. . He left for Keteni’s place at 7:00pm. He did not come to work on 25th July and on 26th July PW3 heard the story from Noah PW2 that there were rumors that Jackson had been killed. Wesley went to check at the local dispensary for information and learnt that it was true. He said he learnt of the name Judy at the Police station and did not know who had killed him.

7. PW3, John Kiplangat Kirui, testified that on July 25, 2016 at about 12. 30 a.m. while at home sleeping, two young men Philemon & Vincent came and woke him up saying they needed help. That a stranger had entered the place where the two worked. That Victor had a panga. That when this person tried to run away he collided with Vincent. That they had beaten the person and he was injured. He told them that they needed a doctor to give him first aid. That Vincent told him it was Victor who had collided with the person. That Victor had a panga and he cut the person.

8. The three of them, PW3, Philemon and Vincent went to a neighbor of PW3 who was a daktari. They woke him up and the four of them went to where the person was lying down. The Daktari told them that that was a police case and he called the police who came with their motor vehicle and took the person to hospital. The following day he was told by the daktari that the person died while on the way to hospital. He testified that Keteni’s homestead was a rich person’s home which was fenced and people could not just enter there anyhowly. That he knew that one Judy and a sister to Keteni lived there.

9. On cross examination he told the court that the homestead was fenced under tight security and strangers were not allowed in. He said the deceased was injured inside the compound of Keteni and ran away and that is how he was found outside Ketene’s compound. He also said he did not know how what could have happened as the place was fenced in such a way that no stranger would enter there.

10. PW4, No. 70406 Sgt. Joseph Ologe from Mwariki Police Station testified that on July 29, 2016 at 2:30p.m while at work he was called by his OCS Nakuru Police Station. He went to the office and found two persons namely Julius Kipkemoi and Charles Kiprono who had been sent by the OCS Keringet Police Station. He accompanied them to War Memorial Mortuary for the postmortem of Jackson Kiprono Ng’etich . There they identified the body and Dr. Ngulungu conducted the postmortem and gave out some samples liver, kidney, intestine, urine for DNA. He took the sample to Kisumu Government Chemist. When the report was ready he handed over to the OCS for further investigation.

11. He testified that according to his own statement the deceased was suspected to have died from mob injustice over a love affair. He also changed the story and said that the issue of samples for DNA was not in his statement and that Dr. Ngulungu was not the Pathologist in this case and that it was Dr. Wainaina.

12. Dr. Wainaina who conducted Post Mortem examination on the body of the deceased did not appear to testify. The Prosecution and the defence agreed to admit the postmortem report by consent. The cause of death was indicated as severe head injury with depressed skull caused by sharp heavy object, and massive hemorrhage.

13. After the testimony of PW4 the prosecution closed its case.

14. On whether the accused persons had a case to answer, Ms. Chepng’etich for the accused persons submitted that none of the prosecution witnesses witnessed the incident and none linked the accused persons to the killing of the deceased. That this is a case based on circumstantial evidence and that the prosecution has failed to establish a prima facie case to warrant placing the accused person on their defence. She urged the court to dismiss the charges under section 210 of the Criminal Procedure Code.

15. On her part Ms. Murunga for the state urged the court to find that a prima facie case had been established to warrant the placing of the accused persons each on his defence. She submitted that evidence of PW3 showed that the accused persons assaulted the deceased at their place of work and that PW1 in his testimony confirmed that the deceased had gone to Keteni’s where the accused persons were employed as security guards. She submitted that the use of a sharp object to cut the deceased’s head inferred malice on the part of the accused persons and urged this court to place the accused persons on their defence.

16. In a rejoinder defence counsel submitted that the testimony of PW3 was hearsay

17. The only issue for determination is whether or not the prosecution has made out a prima facie case against the accused persons that would warrant the court to place them or any of them on their defence.

18. Section 306 of the Criminal Procedure Code requires the court, after closure of the prosecution case, to make a considered determination of the evidence and determine whether an accused person has a case to answer. The section provides:“36(1) When the evidence of the witnesses for the prosecution has been concluded, the court, if it considers that there is no evidence that the accused or any one of several accused committed the offence, shall after hearing, if necessary, any arguments which the advocate for the prosecution or the defence may desire to submit record a finding of not guilty.(2)When the evidence of the witnesses for the prosecution has been concluded the court, if it considers that there is evidence that the accused person or any one or more of several accused persons committed the offence, shall inform each such accused person of his right to address the court on his own behalf or make unsworn statement and to call witnesses in his defence...”

19. On what constitutes a prima facie, in Bhatt v R [1957] EA 332 the Court of Appeal held:“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.”

20. Oxford Companion of Lawat pg 907 defines “prima facie” in the following terms:“A case which is sufficient to all an answer while prima facieevidence which is sufficient to establish a fact in the absence of any evidence to the contrary is not conclusive.”

21. In this case there is no dispute that the deceased died. That was established by the postmortem report.

22. The evidence of PW3 that the 2nd accused told him that he 2nd accused and the 1st accused beat the deceased is not admissible as it is hearsay, and if considered as an admission, ought to have been collected in the manner envisaged by the law.

23. The prosecution case is based purely on circumstantial evidence. The prosecution witnesses that were brought before this court did not see how the deceased died nor did they identify the accused persons as the ones who caused the death of the deceased.

24. PW1 & PW2 in their testimony testified that the deceased had gone to see one Judy at Keteni’s place. PW3 on the other hand testified that Judy lived at Keteni’s place and that the deceased was found lying outside the homestead of Keteni. No evidence was availed from the people said to be living win Keteni’s home yet it is alleged that deceased had gone in there to visit his girlfriend. That girlfriend was not called as a witness. Her mobile number was in one of the prosecution witnesses phone as the deceased is said to have rang her using it. The testimony by the police officer that the deceased was mob injustice due to a love affair stood uninvestigated. Who was this other person(s) who were involved in a love affair with Judy? The accused persons were not mentioned in that mix, so why were they charged? In addition, who were these mob that beat up the deceased? Those were answers that prosecution ought to have sought from the investigators before charging the accused persons.

25. The submission by the prosecution that the two accused were employed at Keteni’s as security guards was not supported by any evidence.

26. More importantly is the allegation that the deceased had gone to the Keteni’s homestead to see one Judy was never proved by evidence. It would have been the easiest thing to do to call Judy to appear and establish whether or not the deceased did go to see her on the dates alleged. No one was called from the Keteni household to testify on this issue.

27. Neither Philemon mentioned by prosecution witnesses, nor the alleged daktari who remained nameless were called to testify. No police officer investigated the case, visited the scene. PW4 only attended the postmortem and the rest of his testimony was very shaky, as he kept changing it.

28. In addition to the no statement was recorded from the accused persons amounting to confessions to support testimony of the PW3.

29. Clearly the evidence before me establishes that the deceased died through homicide, but it does support the charge against the two accused persons to warrant their being placed on their defence as required by section 306(2) of the Criminal Procedure Code.

30. I therefore proceed under section 306(1) to make a finding of not guilty, dismiss the charge and acquit each accordingly.

DATED, SIGNED AND DELIVERED VIRTUALLY THIS 5TH DAY OF MAY, 2022. Mumbua T. Matheka.Judge.In the presence of;CA EdnaMr. Kihara for stateMs. Chepng’etich for the accused persons1st and 2nd accused present