[2018] KECA 531 (KLR)

IN THE COURT OF APPEAL

AT ELDORET

(CORAM: E. M. GITHINJI, HANNAH OKWENGU &

J. MOHAMMED, JJ.A.)

CRIMINAL APPEAL NO. 19 OF 2015

BETWEEN

THOMAS KIPROP KOECH.............................................APPELLANT

AND

REPUBLIC.......................................................................RESPONDENT

(Appeal from the judgment of the High Court of Kenya at Eldoret,

(Ngenye-Macharia, J.) dated 17th May, 2014

in

HCCRC NO. 33 OF 2006)

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JUDGMENT OF THE COURT

[1]This is an appeal against the judgment of the High Court (Ngenye-Macharia J.) whereby the High Court convicted the appellant for the offence of murder and sentenced him to death.

[2] The appellant was charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code.

The particulars of the offence alleged that on the night of 26th and 27th, June, 2007, the appellant murdered A K K (deceased). Before the plea was taken, the appellant was assigned a counsel by the court. The plea was eventually taken on 16th August, 2007 when the appellant pleaded not guilty.

[3] (i) At the trial, the prosecution called nine witnesses namely: Richard Kipyengo Saina, Joseph Matui, Daniel Kiptupbut Ng’etich, Barnabas Kiptoo Singoei, William Kiplimo Kemboi, Julius, Kipkorir Bartun, Dr. Lisbanga Bill, Cpl. Victor Kipkemoi and Sgt. Harrison Wesonga.

In summary the prosecution case was as follows:

The appellant who is the father of the deceased was living in his house, which was near a road, with his wife, the deceased who was aged about 2 years and another child.

On the night of 26th June, 2006, the appellant who appeared drunk quarrelled with his wife and threatened to beat her. His wife ran away and went to sleep in the house of a neighbour, Julius Kipkorir Bartun (PW6) (Bartun).

On the following day at 8. 00a.m., the appellant called Richard Kipyengo Saina (PW1) (Saina) who was passing by, took him to his house and showed Saina the deceased who was lying on a mat on the floor and covered with a blanket. The appellant told Saina to check if the deceased was still alive. Saina checked the child and formed the opinion that the child was dead. Saina asked the appellant what had happened to the child and the appellant replied that he may have fallen on the child on the previous night.

Saina left the appellant and the deceased and called neighbours.

(ii) The matter was reported to William Kiplimo Kemboi (PW5) (Kemboi), the Assistant Chief who visited the scene and noticed that the deceased had injuries on the neck and face. He questioned the appellant but the appellant who appeared drunk told him not to ask him any questions. Kemboi called the police on phone. Sgt. Harrison Wesonga (PW9) of Kapsabet Police Station who received the report through a telephone call and went to the scene and found the deceased lying on a mat on the floor in the appellant’s house. The deceased had visible swellings on the neck. The appellant did not tell him what had happened. He arrested the appellant and took the body of the deceased to Kapsabet District Hospital mortuary.

(iii) On 30th June, 2006, Dr. Lisbanga Bill performed a post mortem on the body of the deceased. His findings were that the body had bruises on the upper lip, fracture of the skull and fracture of the cervical spine. He formed the opinion that the cause of death was strangulation and head injury.

[4] The appellant stated in his defence that on the morning of 27th June, 2006 he wondered why the deceased had not woken up. He then saw Saina, who was outside the house called him and took him to the room where the deceased was. After checking the deceased, Saina commented that the deceased was cold. The appellant further stated that he did not know what happened to the deceased and his wife who ran away is the one who could have told the court what really happened on that day.

[5] The learned judge made findings that the deceased died as a result of strangulation and head injury; that the appellant’s wife had fled the house after she picked a quarrel with the appellant; that the wife of the appellant only returned to the house alongside other neighbours and members of the public who got wind of the heinous crime; that the defence of the appellant was incredible; that the appellant was the only person who could have inflicted the fatal injuries on the deceased; and that the circumstantial evidence was strong and left no doubt that the appellant was the author of the deceased’s death.

[6] The appeal is based on the grounds in the supplementary memorandum of appeal filed by Mr. Miyienda, the appellant’s counsel on 16th March, 2017. The grounds of appeal, amongst other things, fault the learned judge for convicting the appellant for murder when all available evidence suggested manslaughter; convicting the appellant in the absence of the evidence of Emily Jebitok Koech, who was an accomplice or suspect; for shifting the legal burden of proof and by failing to comply with the provisions of section 200(3) of the Criminal Procedure Code (CPC).

[7] It is convenient to consider first the ground that section 200(3) of the CPC was not complied with. By section 201(2) as read with section 200(1) (b), of CPC a judge who has succeeded another judge who had heard and recorded the whole or part of the evidence but has not written the judgment, may act on the evidence recorded by the predecessor.

By section 200(3) of CPC, an accused may demand before a succeeding judge that any witness be resummoned and reheard by the succeeding judge and the succeeding judge is required to inform the accused of that right.

By section 200(4)- where an accused has been convicted upon evidence that was not wholly recorded by the convicting judge, the Court of Appeal may, if it is of the opinion that the appellant was materially prejudiced set aside the conviction and may order a re-trial.

[8] During the trial of the appellant the evidence of the witnesses was received by four judges. Kaburu Bauni J. took the evidence of two witnesses, Mwilu J.(as she then was)received the evidence of seven witnesses after which the prosecution closed the case. Mwilu J. also ruled that the appellant had a case to answer. Before taking over from Kaburu Bauni J., Mwilu J. had ordered that the trial do proceed from where it was left. This was after the State Counsel so applied. The appellant’s counsel did not object to that procedure.

Thereafter, Karanja J. took over the trial and ordered in the presence of the appellant that the hearing do proceed from where it stopped. However, Karanja J. did not proceed with the trial. It was taken over by Mshila J. who, after the proceedings had been typed, heard the evidence of the appellant. However Mshila J. was transferred before she heard the submissions.

The trial was taken over by Ngenye Macharia J. On 10th July, 2013. Mr. Okara, learned counsel for the appellant at the trial before Ngenye Macharia J. stated:

“The matter had been concluded and was pending for submissions. It should proceed from where it had reached”.

The State Counsel and the appellant are recorded to have agreed with that suggestion. The learned judge then ordered that the trial proceeds from where it had reached. Thereafter, the judge received the submissions of the respective counsel and pronounced the impugned judgment.

[9] In considering whether section 200(3) of the CPC was complied with and the effect of non-compliance if any, the relevant and crucial time is when the last trial judge who wrote and pronounced the judgment took over the trial as the previous judges who handled the trial did not make any decision which may or may not have prejudiced the appellant.

By section 200(1) (b) of the CPC, it was lawful for Ngenye Macharia J. to continue with the trial and write the judgment although she had not heard and recorded any evidence. However, section 200(3) had to be complied with.

The proceedings of 10th July, 2013 show that it is the appellant’s counsel who, aware of the law, asked the trial judge to proceed with the trial from where it had reached, a suggestion which the appellant, State Counsel and the learned judge accepted. Further, it is evident from the record that the matter had been fixed before Ngenye Macharia J. for 27th May, 2013 for direction for reason that Mshila J. had been transferred, but on that date, although the appellant’s counsel was present, directions were adjourned to 10th July, 2013 as the appellant was absent.

It is clear that the learned judge took care not to give any direction which might have prejudiced the appellant in his absence, and only gave directions on 10th July, 2013, after hearing the appellant’s counsel in the appellant’s presence.

In the premises, it is clear that section 200(3) was complied with and the appellant and his counsel expressly elected to have the trial proceed from where it had reached.

[10] Furthermore, we are not satisfied that the continuation of the trial by Ngenye Macharia J. occasioned any material prejudice to the appellant. The essence of the evidence of the witnesses was that the deceased was found lying dead in the appellant’s house and in the presence of the appellant. That fact was admitted by the appellant. None of the witnesses said that he saw the appellant assault the deceased. It is on the basis of that circumstantial evidence that the appellant was convicted.

We are satisfied that section 200(3) of CPC was complied with and further that the continuation of the trial by Ngenye-Macharia, J. did not occasion material prejudice to the appellant. The ground of appeal based on non-compliance with section 200(3) of the Criminal Procedure Code has no merit.

[11] The ground and the submission that the appellant’s wife was a prime suspect is not supported by the evidence. Although the appellant stated that she is the only person who could have explained what happened, the learned judge considered the evidence of Bartun that the appellant’s wife slept in his house on the night of 26th June, 2006 and the evidence of Barnabas Kiptoo Singoei who said that he saw the appellant’s wife coming from a neighbour’s house on the morning of 27th June, 2006. The learned judge believed the evidence of the two witnesses.

In addition, there was the evidence of Sgt. Harrison Wesonga, the investigations officer that the investigations revealed that the wife of the appellant had ran away to a neighbour’s house leaving the deceased asleep. The appellant did not say in his statement in defence that his wife slept in the same house or that it was his wife who caused the death of the deceased. Thus, the finding of the learned judge that the appellant was the only person who was in the house was supported by credible evidence.

[12] The prosecution case was dependent on circumstantial evidence. The learned judge appreciated the principles on which an inference of guilt can be drawn from circumstantial evidence and particularly relied on three cases including Republic vs Kipkereng Arap Koske & Kimure Arap Matatu [1949] EACA 135. This is a case where the appellant was in his house at night with the deceased. On the following morning the deceased was found dead. Saina who was called by the appellant noticed that the deceased had a swollen head and Kemboi and Bartun saw injuries on the neck and face of the deceased. Sgt. Harrison Wesonga saw a swelling on the neck of the deceased. Dr. Lisbanga Bill found that the deceased had a fracture of the skull and cervical spine. Upon performing the post-mortem, he formed the opinion that the cause of death was due to strangulation and head injury. The appellant in his statement merely said that he did not know what happened to the deceased. By section 111(1) of the Evidence Act, the burden of explaining the circumstances under which the deceased sustained fatal injuries being within his knowledge was upon the appellant. We agree with the learned judge that in those circumstances the only reasonable inference was that, it is the appellant who unlawfully caused the fatal injuries that resulted in the death of the deceased.

[13] It is submitted that no malice aforethought was proved and that the evidence showed that the appellant was drunk. The learned judge inferred from the circumstances that the appellant visited his anger against his estranged wife towards the deceased and that the act of calling Saina in the morning to check if the deceased was alive or dead was a pretentious excuse. Although the appellant did not say that he was drunk, he is entitled to benefit from any defence which may be disclosed by the prosecution evidence as per the proviso to section 111(1) of the Evidence Act.

There was evidence from several witnesses including Joseph Matui, and Kemboi that the appellant appeared drunk. The investigating officer testified that the appellant was slightly drunk. There was also evidence that the appellant was wearing only an underwear, and that the neighbours found him sleeping on the mat on which the deceased was lying.

It is probable in the circumstances that the appellant in a drunken stupor and in the heat of passion strangled the deceased after his wife ran away and without the necessary mens reato kill. We notice from the court record that after two witnesses had testified the State Counsel had applied for adjournment to review the evidence and ascertain whether the offence committed was murder or manslaughter. A report was not given to the court and a different State Counsel prosecuted the case afterwards and continued with the murder charge.

In the circumstances, the appellant is entitled to the benefit of doubt. Accordingly, we find that the appellant committed the offence of manslaughter and not murder.

As regards sentence, the appellant was in custody pending trial for about 4 years before he was released on bond. After conviction, he has been in custody for 4 years. Thus, the appellant has suffered custody for about 8 years.

This was a family tragedy which no doubt has had an adverse psychological effect on the appellant. A sentence of 7 years will serve the interest of justice.

[14] For the foregoing reasons, the appeal is allowed to the extent that conviction for murder is quashed and the sentence of death set aside.

A conviction for manslaughter contrary to section 202(1) as read with section 205 of the Penal Code is substituted therefor. The appellant is sentenced to 7 years imprisonment to take effect from 29th May, 2014 when he was sentenced.

We so order.

Dated and Delivered at Eldoret this 31st day of May, 2018.

E. M. GITHINJI

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JUDGE OF APPEAL

HANNAH OKWENGU

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JUDGE OF APPEAL

J. MOHAMMED

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JUDGE OF APPEAL

I certify that this is a true

copy of the original.

DEPUTY REGISTRAR