1. Pursuant to the information dated and filed herein on 10th July 2020 by the Director of Public Prosecution, the accused Sammy Onyango was charged with murder, contrary to Section 203 as read with Section 204 of the Penal Code. It was alleged that on the 25'h June 2020 at Lessos Location within Nandi County the Accused murdered Lazaro Tirop.
2. The case for the prosecution was that the deceased operated a business next to that of Cosmos Kosgei [PW1j at Lessos Trading Center and on the material date a phone call was made to Cosmas informing him that a group of four police officer were leaving the local police station heading to the trading center and he should therefore close his business if he had customers.
3. Shortly thereafter, Cosmos [PW1], spotted the group of the four police officers leaving the nearby police station towards the center. He could see them from where he was standing outside his business premises and noted that two of them were in police uniform and the other two in civilian clothes.
The uniformed police officers were armed with firearms, they warned him while passing near him. He knew and recognized them by their names i.e. Dicklack and Belt.
4. Cosmos, noted that the police officers in civilian clothes entered a nearby restaurant while the uniformed ones [Dicklack and Belt] encountered a motor cycle taxi [boda- boda] and stopped it. The pillion passengers alighted from the motor cycle and since he knew one of them he [PW1] approached the officers and pleaded with them to help the passengers even as they [officers] asked for a bribe [chai] from the passengers. It was then Tirop [deceased] arrived at the scene and sought to know what the problem was.
5. In the meantime, police officer Diclack, ordered the motor cycle operator [rider] to alight from it as he, [officer] boarded the cycle with his firearm hanging on his back while using his phone to cal! for reinforcement alleging that they were being blocked and restrained from arresting some people. A few minutes thereafter, the civilian clothed officers who earlier had entered a restaurant appeared at the scene. They were recognized by Cosmos [PW1j to be Karanjo and Onyango.
6. Officer Onyango ordered everyone who had gathered at the scene to move away while telling Dicklack to re-start the motor cycle. It was at that moment that officer Dicklack pointed at the deceased thereby prompting his arrest by officer Onyango who is herein identified as the Accused.
7. The deceased resisted arrest and declined to be taken to the police station. In the process the deceased was shot on the shoulder and fell down. The officer Dicklack or De clerk, real name, Deklerk Amowo Mutilu [PW2] heard the gun shot, he could not tell where it had come from since it was only him and his colleagues CPL Belt also known as CPL Kipsong David [PW5j and PC Karanja who had their official firearms at the time although his firearm was with PC Onyango [Accused).
8. After the gun shot PC De Klerk [PW2] rode the motor cycle to the police station where he found the officer in charge of the armory, Sgt. Kiptoo [PW10] and the Officer Commanding Station [OCS] CIP Peter Muguru. It was earlier in the day that the three firearms at the scene of the commotion between the police officers and members of the public were issued by Sgt. Kiptoo [PW10] who confirmed as much and indicated that a firearm make AK47 rifle was issued to PC D'klerk [PW2] while a firearm make scorpion rifle was issued to PC Gadson Karanja and another firearm make AK47 rifle was issued to CPL Befl [Pw5I
9. Sgt. Kiptoo indicated that after the officers left the police station with the firearms at about 10:00am they returned after one hour being chased by members of the public who were shouting using words to the effect that “They have killed, they have killed i.e. “Wameua Wameua."
On instructions from the OCS, Sgt Kiptoo [PW10] mobilized the officers at the police station and issued additional firearms and am munitions to them with PC D'klerk [PW2] asking for another firearm alleging that PC Onyongo [Accused] had taken his. PC. D'klerk then disarmed this Accused and returned the firearm to Sgt. Kiptoo.
10. At the police station members of the public became chaotic, they threw stones and lit bonfires around the station prompting reinforcement of police officers from Kapsabet, Tinderet and other areas and the firing of live am munitions to scare away the charged, chaotic and rowdy member of the public who were on the verge of overrunning the police station with some of them being injured and/or shot dead. When the situation was brought under control three dead bodies lay down on the ground.
11. It was more or less a “scene from hell" but before that while at the scene within Lessos Trading Center a motor cyclist, Paul Kiprop Misoi [PW3] arrived there and saw a small crowd of people including two police officers and boda-boda cyclists. He stopped his motor cycle a few meters away and noted two uniformed police officers approaching the scene while holding a motor cycle.
He also noted two additional police officers clad in civilian clothes approaching the scene. Shortly thereafter, he [PW3j heard gunshots, looked around and realized that he had been shot on his right leg.
He was assisted by fellow members of the public and taken to a nearby health facility from where he was referred to Kapsabet Hospital.
12. Misoi [PW3] alluded to a commotion involving members of the public and the police officers following the detention of a motor cycle by the officers and indicated that the bullet which hit the deceased was the same one which hit him on the leg.
He also indicated that at the scene he spotted a police officer called Douglas sitting on the motor cycle and implied that he was uncertain as to whether Sammy Onyango [Accused] was at the scene at the material time. He further indicated that the two police officers aforementioned were previously known to him.
13. A casual worker cum trader, Patrick Kipketer Ngeiwo [PW4], was on the material date attracted by screams coming from Lessos Trading Center at about II :00am. He proceeded there and found the dead body of the deceased lying down on the ground.
He gathered that a person had been hit on the head with a tear-gas canister and helped him into a vehicle to be taken to hospital, but shortly thereafter, he was also hit on the head and blacked out only to find himself in hospital. He never saw any police officer at the scene when he arrived there.
14. Wilson Kibor Korir [PW6], a barber by occupation was at his work place within Lessos town when he noticed a crowd of people gathered near a road and shortly thereafter he heard gunshots and rushed to the same with others. On arrival, he found the Accused who he previously knew as Afande Onyongo and noted that he was in police jungle uniform along with a colleague.
15. Korir [PW6] realized that the deceased had been Shot dead and his body was lying on the road bleeding from the left side of the abdomen. He saw two spent cartridges next to the body even as the scene became chaotic with member of the public throwing stones and many police officers arriving there. The deceased was a cobbler and his brother in law.
He [PW6] noted that the Accused was at the time holding a
firearm, but ran to the police station with colleagues when chaos increased.
16. A vegetable vendor, Dino Biwott [PW 7] had a vegetable stall next the deceased's area of operation as a cobbler and on the material date at about ] l :O0am she saw a motor cycle taxi operator being stopped by two police officers despite his resistance and disobedience of the stop order. One police officer got hold of the cycle’s control bar prompting a pillion passenger to escape. The officer was in police jungle gear and was familiar to Dino [PW7]. She identified him as the Accused, based at the local police station.
17. The witness [PW7] decided to ignore what was happening at the scene and returned to her stall to attend to customers after which she spotted a group of motor cycle operators [boda-boda riders] arriving at the scene while the deceased was heading there. She also spotted the Accused pull out a phone from his pockets and make a call. Thereafter, two additional police officers arrived at the scene. One was armed with a firearm which he handed over to the Accused before climbing a motor cycle and leaving the scene. Other officers also left the scene save the Accused.
18. Dino [PW7] indicated that after being left at the scene alone the Accused was held by the deceased and told to leave and no sooner had the deceased turned around the Accused fired gunshots downwards and the deceased suddenly fell down. The Accused ran away even as the crowd of people at the scene screamed and shouted that he had killed. She [PW7] also ran away and went to her home.
19. Ezekiel Kirwo Rotich [PW8], rode his motor cycle into Lessos Trading Centre on that material date while carrying two passengers, his uncle and one Paul Mengich.
He stopped briefly to increase the air-pressure in the tires of his motor cycle, but was waved to stop by two police officers who inquired as to why he was carrying excess passengers. He was then ordered to alight from the motor cycle. He did not know the two police officers, but one of them took away the ignition key of the motor cycle and both of them were in police uniforms.
20. He [PW8) noticed that a crowd of people was gathering at the scene and among them was a disabled person whom he later learnf was the deceased. The crowd became charged as they demanded his release. His passengers had already escaped from the scene.
The officers at the scene called for reinforcement and two additional officers arrived, one of them took a firearm from the other and engaged in argument with the deceased before a gun-shot was fired followed by screams from a lady. The scene became chaotic.
21. The witness [PW8] amid the chaos left the scene and hid nearby, but after realizing that the deceased was the person shot. He could not however, tell which of the police officers fired the fatal shot.
Senior Superintendent of Police, Alex Mwandawiro [PW9], a firearms examiner based at the Forensic Ballistic Laboratory in Nairobi examined the suspect firearms [P. Exhibit 2 a -c] together with their rounds of ammunition after they had been handed over to him by Sgt. Benjamin Nyongesa [PW 12], then attached for the DCI Nandi East. After the examination he [PW9] compiled and sipned the necessary report [P. Exhibit 9]. He stated that he noted that the recovered spent cartridges were not fired from the subject firearms bul his report indicated otherwise.
22. Dr. Kibet Kongor [PW11j, carried out a post mortem [autopsy] on the body of the deceased on 29'h June 2020 at Nandi Hills Hospital and compiled the necessary post mortem report [P. Exhibit 11] thereafter. He formed the opinion that the cause of death was severe spinal injury secondary to a gunshot wound by a high caliber firearm.
Sgt. Nyongesa (PW12] investigated the case and forwarded his recommendations to the Office of the Director of Public Prosecution [ODPP] which thereafter instituted the present charge against the Accused.
23. The defence case was a denial by the Accused of having been responsible for the death of the deceased. He stated that as at the material time of the offence he had served as a police officer of the rank of constable for a period of two [2] years and on the material date he was on duty at Lessos Police Station when his Commanding Officer [OCS] CIP. Peter Muguro MCR CA5£ NO. E0a1 O£20a1 PAGE 10
assigned him and other patrol duties within Lessos Township. His team included PC. DeKlerk and PC. Karanja.
24. Before commencing the assignment, the Accused obtained from his superior officer CPL Belt [PW5) the permission to go for breakfast as he had been on duty during the night. He proceeded to PC Godson Karanja's house for breakfast along with PC Karanja before him [PC. Karanja] was called by PC DeKlerk [PW2] who had commenced the patrol duties in advance alongside CPL. Bett. He [Accused] learnt that the advance team had arrested a motor cycle taxi-operator [boda-boda] and were in the process confronted by a multitude of boda-boda riders.
25. The Accused joined PC. Karanja and they proceeded to the scene where they found PC De klerk and CPL Belt standing 25 to 30 metres apart. The Accused was instructed by CPL. Belt to join PC De klerk while he [CPL] remained with PC Karanja. It was after he joined PC De Klerk that a group of young men numbering more than fifty [50j arrived at the scene which already had a big crowd of boda-boda riders.
28. The Accused was blocked by the entire group from reaching PC. DeKlerk, he pushed himself through the crowd and reached PC De-Klerk who asked him to board a motor cycle so that they could return to the police station. Before, he could board the motor cycle he heard three gunshots after which the scene became chaotic. PC De-klerk escaped to the police station on the motor cycle leaving his official firearm at the scene on the ground. He [Accused] picked the firearm to secure it. He was not personally armed on that material date and opined that the gunshots were from within the crowd of people.
27. As the scene became more chaotic the Accused and everybody else became so scared, but he managed to escape to the police station with the crowd of people in “hot pursuit" and throwing stones. He arrived at the police station and found PC De Klerk who took away the firearm secured by himself [Accused] and handed it over to the station’s armory officer. PC Karanja and CPL Belt had already arrived at the police station.
28. The big crowd of people at the police station created anarchy and torched some of the buildings at the station. It was later at about 8:30pm that the Accused learnt from the officer commanding station that three people had been shot. He was directed to board a vehicle and proceed to Nandi Hills Police Station where he was arrested and interrogated by the DCIO Sgt. Nyongesa [PW12]. Another team of investigators from IPOA interrogated PC De Klerk.
29. Later, the Accused learnt from the DCIO Wasiliwa that it was recommended that he be arraigned in court for the offence of unlawful wounding which case is ongoing at the magistrate’s court at Kapsabet. He contended that he did not commit the present offence.
30. The evidential facts foregoing give rise to the critical issue for determination in this matter i.e. whether the deceased was murdered and if so, whether the Accused was responsible for the unlawful! act.
In terms of Section 203 of the Penal Code, murder denotes causing the death of another person with malice aforethought. Therefore, a charge of murder entails proof of the act causing death and guilty mind i.e. the intention to cause the death, otherwise known as malice aforethought.
31. A finding that murder has been committed must invariably be based on cogent and credible evidence from the prosecution because in law it shoulders the burden of proving its case against an Accused Person beyond any reasonable doubt.
The intention to kill is imputed where it is proved that the offender had the intention to cause the death of or to do grievous harm to any person, whether that person is the person actually killed or not [See, Section 206 of the Penal Code].
32. The duty of the prosecution to prove on offence against an Accused Person is a cardinal principle of law. In particular, considering the genera! rule that an Accused Person assumes no legal burden of establishing his innocence except in certain limited cases where the law places a burden on the Accused to explain matters peculiarly within his personal knowledge [See, Kioko Vs. Republic [1983] KLR 289 and Mkendeswho Vs. Republic [2002] 1 KLR 461j.
33. In the Kioko Case [Supra] the Court of Appeal held that: - “In a murder or manslaughter charge, the burden never shifts from the prosecution; it is not for the Accused to establish his innocence. To refer to certain acts or omissions by on Accused person as being inconsistent with his innocence would be to shift the burden from the prosecution and to require the Accused to prove his innocence."
34. The term “proof beyond reosonolole doulot” in Criminal cases would have the meaning assigned to it in the decision of the Court of Appeal cifed herein by the prosecution i.e. Stephen Nguli Mulili Vs. Republic [2014] KECA 408[KLR} in which the observation of Lord Denninq M.R. in Miller Vs. Ministry of Pensions [1947j 2 AL [KLR) 3/2 were applied to the effect that: -
“That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The low would foil to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which con be dismissed with the sentence of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice.”
35. Herein, whereas the prosecution submitted that all the necessary ingredients of the offence of murder were sufficiently established beyond reasonable doubt against the Accused, the defence submitted otherwise and contended that truthfulness of the key prosecution witnesses was clearly in doubt hence creating a reasonable doubt as to the Accused criminal culpability by its contradictory nature and lack of corroboration.
36. As may be seen from this court's Observations herein above and the applicable principles of law set out in the authorities cited herein, the burden to prove the case against the Accused fell squarely on the prosecution and at no time did it shift to the Accused who was not under any legal obligation to prove his innocence.
37. Basically, in totality the evidence in this case quite clearly showed that the unfortunate events of the material date leading to the untimely demise of the deceased were provoked or ignited by the resistance police officers met while in the due execution of their lawful duty of maintaining law and order by arresting a motor cycle operator [boda-boda] for flaunting traffic rules.
38. The evidence by Cosmos [PWJ], PC Deklerk [PW2], Paul [PW3], CPL Kipsongo [PWS], Dino [PW7] and Ezekiel [PW8] confirmed that the group of villagers who gathered at the scene at the material time of the lawful arrest of a boda-boda rider resisted the arrest and prevented the police officers from lawfully executing their duty.
The boda-boda rider in question was none other than Ezekiel [PW8]. He indicated that a charged crowd of people gathered at the scene while he was being arrested and resisted the arrest demanding for his release thereby prompting the two police officers at the scene to call for reinforcement.
39. Ezekiel [PW8] implied that tension was building up at the time and it escalated into a chaotic situation after the arrival of reinforcement in the form of two additional police officers. PC De Klerk [PW2] and CPL Kipsang or Bett [PW5] indicated that it was them who arrested Ezekiel [PW8] and that they called for reinforcement when the scene became chaotic and went full blast in chaos with the arrival of two of their colleagues who were PC Onyango [Accused] and a PC Karanja.
40. Cosmos [PW1] in his evidence indicated that the deceased and himself were part of the group of people who resisted the arrest of Ezekiel [PW8]. This fact was confirmed by PC De Klerk [PW2] and CPL Bett [PW5] who indicated that with the arrival of PC Onyongo and PC Karanja at the scene the chaos intensified and sounds of a gun-shot or gunshots vent the air and when they stopped the deceased lay down on the ground lifeless.
4J. Apparently, the gun shots depicted that bullets or a bullet were/was discharged from a firearm or firearms at the scene. There was undisputed evidence that the firearms were police firearms in possession of the police officers at the scene of the chaos at the material time.
It was evident that a team of four [4] police officers was at the scene at the material time. These included PC De Klerk [PW2], CPL Kipsang [PWS], PC Onyango the Accused and PC Karanja, who was a very crucial witness for the prosecution, but was not availed to testify in court.
42. Be that as it may, a part from the four police officers at the scene there was some members of the public who formed part of the large group of people gathered at the scene when a gunshot [or gunshots] was fired from a police firearm or firearms.
The Accused as corroborated by PC De Klerk [PW2j and CPL Kipsang [PWS] indicated that the three of them along with PC Koronja were assigned patrol duties within Lessos Township or trading centre and whereas PC DeKlerk and CPL. Kipsang was the advance team, PC Karanjo and himself were to follow after taking his breakfast. However, his breakfast was cut short after being called together with PC Karanja by PC De Klerk to reinforce the advance team after members of the public obstructed the team from performing their lawful duty.
43. The Accused stated that at that material time he was not wearing official police uniform and was the only one not in possession of a firearm.
The officer in charge of the armoury, Sgt. David Kiptoo [PW10] confirmed that he issued to CPL. Bett [PWS] a firearm make AK 47 rifle S/No. 4915083 and to PC De Klerk [PW2] a firearm make AK 47 rifle S/No. 4913783. Both firearms had thirty [30] wounds of ammunition each.
44. Sgt. Kiptoo [PW10] also confirmed that he issued a third firearm make scorpion rifle S/No. 4J 4945 with thirty [30] rounds of ammunition to PC Godson Karanja. All the three firearms were produced herein as prosecution exhibit No. 2 a — c. The witness [PW 10] indicated that it was only the Accused who was not issued with a firearm in that team of four [4] police officer. This clearly established that it was only three of the police officers who were armed on that material date and time. Therefore, the bullet which hit and occasioned fatal injury to the deceased was discharged from one of the three police firearms at the scene and must have been fired by one of the three officers in possession thereof.
45. What was not made clear in the evidence of the police officers and the civilians at the scene at the material time was the number of gunshots fired. There was suggestion that only one gunshot was fired and another suggestion that more than one gunshots were fired.
The matter was complicated by the evidence of the doctor [PW11] who stated that he found two bullet wounds on the body of the deceased and confirmed that the deceased was shot twice.
46. The import of the doctor's evidence was that more than one gunshot was fired from any of the firearms in possession of three of fhe officers at the scene or in possession of any other police officer or civilian in the vicinity if the evidence of the Accused is anything to po by in as much as he stated in his defence that the gunshots came from within the crowd of people at the scene.
47. Notwithstanding the number of gun-shots, the post mortem report [P. Exhibit 11] confirmed that the deceased died from severe spinal injury secondary to gun-shot wounds. This being the case the prosecution had the task of providing cogent and credible evidence to prove that the “killer bullet” was fired from a firearm in possession of the Accused at the material time. One may ask, why the Accused and not any other police officers who was at the scene at the material time???
48. The answer to the question would be because it is the Accused who is facing the charge of murdering the deceased. The prosecution was therefore required to prove that he was the person and not any other who fired the “killer bullet” and caused the death of the deceased. There was undisputed evidence that the Accused was not issued with any firearm to carry out his assigned duty with others on that material dole. He was the only one of the four police officers without a firearm and not in police uniform at the time.
49. The firearms which were issued to the Accused’s three colleagues to facilitate the performance of their assigned duty were handed over to the Ballistic Expert, Senior Superintendent [S/SSP] Alex Mwandawiro [PW9] for examination in the course of the investigations carried out by Sgt. Nyongesa [PW12].
Thereafter, the witness [PW9] compiled and signed his report [P. Exhibit 9] dated 2 th September 2020.
50. The report confirmed that the firearms which were issued to PC DeKlerk [PW2], CPL Kipsang [PW5j and PC Karonjo were in good working condition and all capable of being fired. That the two spent cartridges found at the scene were fired from the two AK 47 rifles S/No. 4913783 which was issued to PC De Klerk [PW2] and S/No. 49 J5083 which was issued to CPL. Kipsang [PWS]. PC Koronja was issued with the firearm make CZ Scorpion SMG magazine S/No. 414945 for which it would appear no spent cartridge was recovered at the scene thereby implying that the officer did not fire a shot on the material date and time.
51. So, if the spent cartridges were fired from the firearms issued to PC Deklerk and CPL Kipsang it meant that most likely than not they were the persons who fired the “killer bullets"
which caused the death of the deceased. However, PC Dekclerk [PW2] implicated the Accused with using his firearm to fire one of the shots which killed the deceased. The allegation was vehemently denied by the Accused who indicated that he collected Deklerk's firearm’ from the ground for safe custody after the gun shots had been fired and after it fell down from PC DeKlerk during the commotions and chaos at the scene.
52. On his part PC De klerk stated that while on the motor cycle he felt someone touching his firearm during the commotion, but he held it until someone said “wacha bunduki" i.e. leave the gun.
He checked and realized that it was the Accused who uttered those words. He therefore felt safe and released the firearm to him. In essence PC De klerk implied that one of the killer bullets was indeed fired from his firearm, but the person who pulled the trigger was the Accused.
53. The civilian witnesses present at the scene of the shooting of the deceased included Cosmos [PW 1j, Paul [PW3], Dino [PW7] and Ezekiel [PW8]. Cosmos [PW1] in his evidence indicated on one hand that the deceased was shot by the Accused after the [Accused] took D’Klerk’s firearm and on the other hand he indicated that he could not really tell how the deceased was shot and by whom as he had briefly left the scene when the shooting occurred.
54. He [PW1] said during cross-examination that he returned to the scene and found the deceased lying down dead. His evidence and its contradictory nature was not reliable and could not support the prosecution’s allegation that the Accused was responsible for shooting dead the deceased. Paul [PW3] could also not tell who actually shot the deceased from among the police officers at the scene. His evidence
indicated that he arrived at the scene on a motor cycle and found an altercation between the police officers and members of the public at the scene.
55. Shortly thereafter after the arrival of two additional police officers, he [PW3j heard a gunshot and realized that his leg had been hit by a bullet and was bleeding. He suspected that the bullet which hit the deceased was the same one which hit him. He said that he never saw the Accused at the scene, yet he said that it was the Accused who shot the deceased. He also said that he did not see the Accused holding a gun.
56. Clearly the evidence of Paul [PW3] was also unreliable with implicating the Accused with the offence so was the evidence of Dino [PW7] who stated that the police officers were in police jungle uniforms and that she saw one of them holding the control bar of a motor cycle they had stopped. That, the officer who was holding the control bar was the Accused whom She only knew by face as one of the local police officers.
57. The witness [PW7] went on to state that it was the Accused who pulled a phone from his pockets and conversed with somebody after which two other officers arrived at the scene with one being armed with a firearm which he handed over to the Accused as he climbed a motor cycle and left. That, at that juncture the Accused was left alone and was held by the deceased who told him to leave the place. That, immediately the deceased turned around, she [PW7] saw gunshots being fired by the Accused downwards and that is when the deceased fell down.
58. The witnesses [PW7] indicted in cross-examination that one of the two additional police officers who arrived at the scene was the Accused, yet she had earlier indicated that the Accused was one of the first officers at the scene and that he was one of those who arrested the motor cyclist. She swore that the Accused was wearing police uniform on that material date and was the person holding the motor cycle. That, the Accused did not have a firearm but was later given one by a fellow officer.
59. Clearly, the entire evidence by Dino [PW7] was full of half- truths, probably imaginations and extremely in conflict with that of the rest of the civilian as well as the police officers who were at the material scene at the material time. It was evidence not worth of belief.
As for the evidence of Ezekiel [PW8] he stated that the Accused was one of the two additional police officers who arrived at the scene and was involved in an argument with deceased when a gunshot was fired. He further stated that he did not see who fired the shot. He was categorical that he did not witness the shooting.
60. This witness [PW8] who was the actual cause of the entire events which resulted in the death of the deceased did not in any way implic
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2. The case for the prosecution was that the deceased operated a business next to that of Cosmos Kosgei [PW1j at Lessos Trading Center and on the material date a phone call was made to Cosmas informing him that a group of four police officer were leaving the local police station heading to the trading center and he should therefore close his business if he had customers.
3. Shortly thereafter, Cosmos [PW1], spotted the group of the four police officers leaving the nearby police station towards the center. He could see them from where he was standing outside his business premises and noted that two of them were in police uniform and the other two in civilian clothes.
The uniformed police officers were armed with firearms, they warned him while passing near him. He knew and recognized them by their names i.e. Dicklack and Belt.
4. Cosmos, noted that the police officers in civilian clothes entered a nearby restaurant while the uniformed ones [Dicklack and Belt] encountered a motor cycle taxi [boda- boda] and stopped it. The pillion passengers alighted from the motor cycle and since he knew one of them he [PW1] approached the officers and pleaded with them to help the passengers even as they [officers] asked for a bribe [chai] from the passengers. It was then Tirop [deceased] arrived at the scene and sought to know what the problem was.
5. In the meantime, police officer Diclack, ordered the motor cycle operator [rider] to alight from it as he, [officer] boarded the cycle with his firearm hanging on his back while using his phone to cal! for reinforcement alleging that they were being blocked and restrained from arresting some people. A few minutes thereafter, the civilian clothed officers who earlier had entered a restaurant appeared at the scene. They were recognized by Cosmos [PW1j to be Karanjo and Onyango.
6. Officer Onyango ordered everyone who had gathered at the scene to move away while telling Dicklack to re-start the motor cycle. It was at that moment that officer Dicklack pointed at the deceased thereby prompting his arrest by officer Onyango who is herein identified as the Accused.
7. The deceased resisted arrest and declined to be taken to the police station. In the process the deceased was shot on the shoulder and fell down. The officer Dicklack or De clerk, real name, Deklerk Amowo Mutilu [PW2] heard the gun shot, he could not tell where it had come from since it was only him and his colleagues CPL Belt also known as CPL Kipsong David [PW5j and PC Karanja who had their official firearms at the time although his firearm was with PC Onyango [Accused).
8. After the gun shot PC De Klerk [PW2] rode the motor cycle to the police station where he found the officer in charge of the armory, Sgt. Kiptoo [PW10] and the Officer Commanding Station [OCS] CIP Peter Muguru. It was earlier in the day that the three firearms at the scene of the commotion between the police officers and members of the public were issued by Sgt. Kiptoo [PW10] who confirmed as much and indicated that a firearm make AK47 rifle was issued to PC D'klerk [PW2] while a firearm make scorpion rifle was issued to PC Gadson Karanja and another firearm make AK47 rifle was issued to CPL Befl [Pw5I
9. Sgt. Kiptoo indicated that after the officers left the police station with the firearms at about 10:00am they returned after one hour being chased by members of the public who were shouting using words to the effect that “They have killed, they have killed i.e. “Wameua Wameua."
On instructions from the OCS, Sgt Kiptoo [PW10] mobilized the officers at the police station and issued additional firearms and am munitions to them with PC D'klerk [PW2] asking for another firearm alleging that PC Onyongo [Accused] had taken his. PC. D'klerk then disarmed this Accused and returned the firearm to Sgt. Kiptoo.
10. At the police station members of the public became chaotic, they threw stones and lit bonfires around the station prompting reinforcement of police officers from Kapsabet, Tinderet and other areas and the firing of live am munitions to scare away the charged, chaotic and rowdy member of the public who were on the verge of overrunning the police station with some of them being injured and/or shot dead. When the situation was brought under control three dead bodies lay down on the ground.
11. It was more or less a “scene from hell" but before that while at the scene within Lessos Trading Center a motor cyclist, Paul Kiprop Misoi [PW3] arrived there and saw a small crowd of people including two police officers and boda-boda cyclists. He stopped his motor cycle a few meters away and noted two uniformed police officers approaching the scene while holding a motor cycle.
He also noted two additional police officers clad in civilian clothes approaching the scene. Shortly thereafter, he [PW3j heard gunshots, looked around and realized that he had been shot on his right leg.
He was assisted by fellow members of the public and taken to a nearby health facility from where he was referred to Kapsabet Hospital.
12. Misoi [PW3] alluded to a commotion involving members of the public and the police officers following the detention of a motor cycle by the officers and indicated that the bullet which hit the deceased was the same one which hit him on the leg.
He also indicated that at the scene he spotted a police officer called Douglas sitting on the motor cycle and implied that he was uncertain as to whether Sammy Onyango [Accused] was at the scene at the material time. He further indicated that the two police officers aforementioned were previously known to him.
13. A casual worker cum trader, Patrick Kipketer Ngeiwo [PW4], was on the material date attracted by screams coming from Lessos Trading Center at about II :00am. He proceeded there and found the dead body of the deceased lying down on the ground.
He gathered that a person had been hit on the head with a tear-gas canister and helped him into a vehicle to be taken to hospital, but shortly thereafter, he was also hit on the head and blacked out only to find himself in hospital. He never saw any police officer at the scene when he arrived there.
14. Wilson Kibor Korir [PW6], a barber by occupation was at his work place within Lessos town when he noticed a crowd of people gathered near a road and shortly thereafter he heard gunshots and rushed to the same with others. On arrival, he found the Accused who he previously knew as Afande Onyongo and noted that he was in police jungle uniform along with a colleague.
15. Korir [PW6] realized that the deceased had been Shot dead and his body was lying on the road bleeding from the left side of the abdomen. He saw two spent cartridges next to the body even as the scene became chaotic with member of the public throwing stones and many police officers arriving there. The deceased was a cobbler and his brother in law.
He [PW6] noted that the Accused was at the time holding a
firearm, but ran to the police station with colleagues when chaos increased.
16. A vegetable vendor, Dino Biwott [PW 7] had a vegetable stall next the deceased's area of operation as a cobbler and on the material date at about ] l :O0am she saw a motor cycle taxi operator being stopped by two police officers despite his resistance and disobedience of the stop order. One police officer got hold of the cycle’s control bar prompting a pillion passenger to escape. The officer was in police jungle gear and was familiar to Dino [PW7]. She identified him as the Accused, based at the local police station.
17. The witness [PW7] decided to ignore what was happening at the scene and returned to her stall to attend to customers after which she spotted a group of motor cycle operators [boda-boda riders] arriving at the scene while the deceased was heading there. She also spotted the Accused pull out a phone from his pockets and make a call. Thereafter, two additional police officers arrived at the scene. One was armed with a firearm which he handed over to the Accused before climbing a motor cycle and leaving the scene. Other officers also left the scene save the Accused.
18. Dino [PW7] indicated that after being left at the scene alone the Accused was held by the deceased and told to leave and no sooner had the deceased turned around the Accused fired gunshots downwards and the deceased suddenly fell down. The Accused ran away even as the crowd of people at the scene screamed and shouted that he had killed. She [PW7] also ran away and went to her home.
19. Ezekiel Kirwo Rotich [PW8], rode his motor cycle into Lessos Trading Centre on that material date while carrying two passengers, his uncle and one Paul Mengich.
He stopped briefly to increase the air-pressure in the tires of his motor cycle, but was waved to stop by two police officers who inquired as to why he was carrying excess passengers. He was then ordered to alight from the motor cycle. He did not know the two police officers, but one of them took away the ignition key of the motor cycle and both of them were in police uniforms.
20. He [PW8) noticed that a crowd of people was gathering at the scene and among them was a disabled person whom he later learnf was the deceased. The crowd became charged as they demanded his release. His passengers had already escaped from the scene.
The officers at the scene called for reinforcement and two additional officers arrived, one of them took a firearm from the other and engaged in argument with the deceased before a gun-shot was fired followed by screams from a lady. The scene became chaotic.
21. The witness [PW8] amid the chaos left the scene and hid nearby, but after realizing that the deceased was the person shot. He could not however, tell which of the police officers fired the fatal shot.
Senior Superintendent of Police, Alex Mwandawiro [PW9], a firearms examiner based at the Forensic Ballistic Laboratory in Nairobi examined the suspect firearms [P. Exhibit 2 a -c] together with their rounds of ammunition after they had been handed over to him by Sgt. Benjamin Nyongesa [PW 12], then attached for the DCI Nandi East. After the examination he [PW9] compiled and sipned the necessary report [P. Exhibit 9]. He stated that he noted that the recovered spent cartridges were not fired from the subject firearms bul his report indicated otherwise.
22. Dr. Kibet Kongor [PW11j, carried out a post mortem [autopsy] on the body of the deceased on 29'h June 2020 at Nandi Hills Hospital and compiled the necessary post mortem report [P. Exhibit 11] thereafter. He formed the opinion that the cause of death was severe spinal injury secondary to a gunshot wound by a high caliber firearm.
Sgt. Nyongesa (PW12] investigated the case and forwarded his recommendations to the Office of the Director of Public Prosecution [ODPP] which thereafter instituted the present charge against the Accused.
23. The defence case was a denial by the Accused of having been responsible for the death of the deceased. He stated that as at the material time of the offence he had served as a police officer of the rank of constable for a period of two [2] years and on the material date he was on duty at Lessos Police Station when his Commanding Officer [OCS] CIP. Peter Muguro MCR CA5£ NO. E0a1 O£20a1 PAGE 10
assigned him and other patrol duties within Lessos Township. His team included PC. DeKlerk and PC. Karanja.
24. Before commencing the assignment, the Accused obtained from his superior officer CPL Belt [PW5) the permission to go for breakfast as he had been on duty during the night. He proceeded to PC Godson Karanja's house for breakfast along with PC Karanja before him [PC. Karanja] was called by PC DeKlerk [PW2] who had commenced the patrol duties in advance alongside CPL. Bett. He [Accused] learnt that the advance team had arrested a motor cycle taxi-operator [boda-boda] and were in the process confronted by a multitude of boda-boda riders.
25. The Accused joined PC. Karanja and they proceeded to the scene where they found PC De klerk and CPL Belt standing 25 to 30 metres apart. The Accused was instructed by CPL. Belt to join PC De klerk while he [CPL] remained with PC Karanja. It was after he joined PC De Klerk that a group of young men numbering more than fifty [50j arrived at the scene which already had a big crowd of boda-boda riders.
28. The Accused was blocked by the entire group from reaching PC. DeKlerk, he pushed himself through the crowd and reached PC De-Klerk who asked him to board a motor cycle so that they could return to the police station. Before, he could board the motor cycle he heard three gunshots after which the scene became chaotic. PC De-klerk escaped to the police station on the motor cycle leaving his official firearm at the scene on the ground. He [Accused] picked the firearm to secure it. He was not personally armed on that material date and opined that the gunshots were from within the crowd of people.
27. As the scene became more chaotic the Accused and everybody else became so scared, but he managed to escape to the police station with the crowd of people in “hot pursuit" and throwing stones. He arrived at the police station and found PC De Klerk who took away the firearm secured by himself [Accused] and handed it over to the station’s armory officer. PC Karanja and CPL Belt had already arrived at the police station.
28. The big crowd of people at the police station created anarchy and torched some of the buildings at the station. It was later at about 8:30pm that the Accused learnt from the officer commanding station that three people had been shot. He was directed to board a vehicle and proceed to Nandi Hills Police Station where he was arrested and interrogated by the DCIO Sgt. Nyongesa [PW12]. Another team of investigators from IPOA interrogated PC De Klerk.
29. Later, the Accused learnt from the DCIO Wasiliwa that it was recommended that he be arraigned in court for the offence of unlawful wounding which case is ongoing at the magistrate’s court at Kapsabet. He contended that he did not commit the present offence.
30. The evidential facts foregoing give rise to the critical issue for determination in this matter i.e. whether the deceased was murdered and if so, whether the Accused was responsible for the unlawful! act.
In terms of Section 203 of the Penal Code, murder denotes causing the death of another person with malice aforethought. Therefore, a charge of murder entails proof of the act causing death and guilty mind i.e. the intention to cause the death, otherwise known as malice aforethought.
31. A finding that murder has been committed must invariably be based on cogent and credible evidence from the prosecution because in law it shoulders the burden of proving its case against an Accused Person beyond any reasonable doubt.
The intention to kill is imputed where it is proved that the offender had the intention to cause the death of or to do grievous harm to any person, whether that person is the person actually killed or not [See, Section 206 of the Penal Code].
32. The duty of the prosecution to prove on offence against an Accused Person is a cardinal principle of law. In particular, considering the genera! rule that an Accused Person assumes no legal burden of establishing his innocence except in certain limited cases where the law places a burden on the Accused to explain matters peculiarly within his personal knowledge [See, Kioko Vs. Republic [1983] KLR 289 and Mkendeswho Vs. Republic [2002] 1 KLR 461j.
33. In the Kioko Case [Supra] the Court of Appeal held that: - “In a murder or manslaughter charge, the burden never shifts from the prosecution; it is not for the Accused to establish his innocence. To refer to certain acts or omissions by on Accused person as being inconsistent with his innocence would be to shift the burden from the prosecution and to require the Accused to prove his innocence."
34. The term “proof beyond reosonolole doulot” in Criminal cases would have the meaning assigned to it in the decision of the Court of Appeal cifed herein by the prosecution i.e. Stephen Nguli Mulili Vs. Republic [2014] KECA 408[KLR} in which the observation of Lord Denninq M.R. in Miller Vs. Ministry of Pensions [1947j 2 AL [KLR) 3/2 were applied to the effect that: -
“That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The low would foil to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which con be dismissed with the sentence of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice.”
35. Herein, whereas the prosecution submitted that all the necessary ingredients of the offence of murder were sufficiently established beyond reasonable doubt against the Accused, the defence submitted otherwise and contended that truthfulness of the key prosecution witnesses was clearly in doubt hence creating a reasonable doubt as to the Accused criminal culpability by its contradictory nature and lack of corroboration.
36. As may be seen from this court's Observations herein above and the applicable principles of law set out in the authorities cited herein, the burden to prove the case against the Accused fell squarely on the prosecution and at no time did it shift to the Accused who was not under any legal obligation to prove his innocence.
37. Basically, in totality the evidence in this case quite clearly showed that the unfortunate events of the material date leading to the untimely demise of the deceased were provoked or ignited by the resistance police officers met while in the due execution of their lawful duty of maintaining law and order by arresting a motor cycle operator [boda-boda] for flaunting traffic rules.
38. The evidence by Cosmos [PWJ], PC Deklerk [PW2], Paul [PW3], CPL Kipsongo [PWS], Dino [PW7] and Ezekiel [PW8] confirmed that the group of villagers who gathered at the scene at the material time of the lawful arrest of a boda-boda rider resisted the arrest and prevented the police officers from lawfully executing their duty.
The boda-boda rider in question was none other than Ezekiel [PW8]. He indicated that a charged crowd of people gathered at the scene while he was being arrested and resisted the arrest demanding for his release thereby prompting the two police officers at the scene to call for reinforcement.
39. Ezekiel [PW8] implied that tension was building up at the time and it escalated into a chaotic situation after the arrival of reinforcement in the form of two additional police officers. PC De Klerk [PW2] and CPL Kipsang or Bett [PW5] indicated that it was them who arrested Ezekiel [PW8] and that they called for reinforcement when the scene became chaotic and went full blast in chaos with the arrival of two of their colleagues who were PC Onyango [Accused] and a PC Karanja.
40. Cosmos [PW1] in his evidence indicated that the deceased and himself were part of the group of people who resisted the arrest of Ezekiel [PW8]. This fact was confirmed by PC De Klerk [PW2] and CPL Bett [PW5] who indicated that with the arrival of PC Onyongo and PC Karanja at the scene the chaos intensified and sounds of a gun-shot or gunshots vent the air and when they stopped the deceased lay down on the ground lifeless.
4J. Apparently, the gun shots depicted that bullets or a bullet were/was discharged from a firearm or firearms at the scene. There was undisputed evidence that the firearms were police firearms in possession of the police officers at the scene of the chaos at the material time.
It was evident that a team of four [4] police officers was at the scene at the material time. These included PC De Klerk [PW2], CPL Kipsang [PWS], PC Onyango the Accused and PC Karanja, who was a very crucial witness for the prosecution, but was not availed to testify in court.
42. Be that as it may, a part from the four police officers at the scene there was some members of the public who formed part of the large group of people gathered at the scene when a gunshot [or gunshots] was fired from a police firearm or firearms.
The Accused as corroborated by PC De Klerk [PW2j and CPL Kipsang [PWS] indicated that the three of them along with PC Koronja were assigned patrol duties within Lessos Township or trading centre and whereas PC DeKlerk and CPL. Kipsang was the advance team, PC Karanjo and himself were to follow after taking his breakfast. However, his breakfast was cut short after being called together with PC Karanja by PC De Klerk to reinforce the advance team after members of the public obstructed the team from performing their lawful duty.
43. The Accused stated that at that material time he was not wearing official police uniform and was the only one not in possession of a firearm.
The officer in charge of the armoury, Sgt. David Kiptoo [PW10] confirmed that he issued to CPL. Bett [PWS] a firearm make AK 47 rifle S/No. 4915083 and to PC De Klerk [PW2] a firearm make AK 47 rifle S/No. 4913783. Both firearms had thirty [30] wounds of ammunition each.
44. Sgt. Kiptoo [PW10] also confirmed that he issued a third firearm make scorpion rifle S/No. 4J 4945 with thirty [30] rounds of ammunition to PC Godson Karanja. All the three firearms were produced herein as prosecution exhibit No. 2 a — c. The witness [PW 10] indicated that it was only the Accused who was not issued with a firearm in that team of four [4] police officer. This clearly established that it was only three of the police officers who were armed on that material date and time. Therefore, the bullet which hit and occasioned fatal injury to the deceased was discharged from one of the three police firearms at the scene and must have been fired by one of the three officers in possession thereof.
45. What was not made clear in the evidence of the police officers and the civilians at the scene at the material time was the number of gunshots fired. There was suggestion that only one gunshot was fired and another suggestion that more than one gunshots were fired.
The matter was complicated by the evidence of the doctor [PW11] who stated that he found two bullet wounds on the body of the deceased and confirmed that the deceased was shot twice.
46. The import of the doctor's evidence was that more than one gunshot was fired from any of the firearms in possession of three of fhe officers at the scene or in possession of any other police officer or civilian in the vicinity if the evidence of the Accused is anything to po by in as much as he stated in his defence that the gunshots came from within the crowd of people at the scene.
47. Notwithstanding the number of gun-shots, the post mortem report [P. Exhibit 11] confirmed that the deceased died from severe spinal injury secondary to gun-shot wounds. This being the case the prosecution had the task of providing cogent and credible evidence to prove that the “killer bullet” was fired from a firearm in possession of the Accused at the material time. One may ask, why the Accused and not any other police officers who was at the scene at the material time???
48. The answer to the question would be because it is the Accused who is facing the charge of murdering the deceased. The prosecution was therefore required to prove that he was the person and not any other who fired the “killer bullet” and caused the death of the deceased. There was undisputed evidence that the Accused was not issued with any firearm to carry out his assigned duty with others on that material dole. He was the only one of the four police officers without a firearm and not in police uniform at the time.
49. The firearms which were issued to the Accused’s three colleagues to facilitate the performance of their assigned duty were handed over to the Ballistic Expert, Senior Superintendent [S/SSP] Alex Mwandawiro [PW9] for examination in the course of the investigations carried out by Sgt. Nyongesa [PW12].
Thereafter, the witness [PW9] compiled and signed his report [P. Exhibit 9] dated 2 th September 2020.
50. The report confirmed that the firearms which were issued to PC DeKlerk [PW2], CPL Kipsang [PW5j and PC Karonjo were in good working condition and all capable of being fired. That the two spent cartridges found at the scene were fired from the two AK 47 rifles S/No. 4913783 which was issued to PC De Klerk [PW2] and S/No. 49 J5083 which was issued to CPL. Kipsang [PWS]. PC Koronja was issued with the firearm make CZ Scorpion SMG magazine S/No. 414945 for which it would appear no spent cartridge was recovered at the scene thereby implying that the officer did not fire a shot on the material date and time.
51. So, if the spent cartridges were fired from the firearms issued to PC Deklerk and CPL Kipsang it meant that most likely than not they were the persons who fired the “killer bullets"
which caused the death of the deceased. However, PC Dekclerk [PW2] implicated the Accused with using his firearm to fire one of the shots which killed the deceased. The allegation was vehemently denied by the Accused who indicated that he collected Deklerk's firearm’ from the ground for safe custody after the gun shots had been fired and after it fell down from PC DeKlerk during the commotions and chaos at the scene.
52. On his part PC De klerk stated that while on the motor cycle he felt someone touching his firearm during the commotion, but he held it until someone said “wacha bunduki" i.e. leave the gun.
He checked and realized that it was the Accused who uttered those words. He therefore felt safe and released the firearm to him. In essence PC De klerk implied that one of the killer bullets was indeed fired from his firearm, but the person who pulled the trigger was the Accused.
53. The civilian witnesses present at the scene of the shooting of the deceased included Cosmos [PW 1j, Paul [PW3], Dino [PW7] and Ezekiel [PW8]. Cosmos [PW1] in his evidence indicated on one hand that the deceased was shot by the Accused after the [Accused] took D’Klerk’s firearm and on the other hand he indicated that he could not really tell how the deceased was shot and by whom as he had briefly left the scene when the shooting occurred.
54. He [PW1] said during cross-examination that he returned to the scene and found the deceased lying down dead. His evidence and its contradictory nature was not reliable and could not support the prosecution’s allegation that the Accused was responsible for shooting dead the deceased. Paul [PW3] could also not tell who actually shot the deceased from among the police officers at the scene. His evidence
indicated that he arrived at the scene on a motor cycle and found an altercation between the police officers and members of the public at the scene.
55. Shortly thereafter after the arrival of two additional police officers, he [PW3j heard a gunshot and realized that his leg had been hit by a bullet and was bleeding. He suspected that the bullet which hit the deceased was the same one which hit him. He said that he never saw the Accused at the scene, yet he said that it was the Accused who shot the deceased. He also said that he did not see the Accused holding a gun.
56. Clearly the evidence of Paul [PW3] was also unreliable with implicating the Accused with the offence so was the evidence of Dino [PW7] who stated that the police officers were in police jungle uniforms and that she saw one of them holding the control bar of a motor cycle they had stopped. That, the officer who was holding the control bar was the Accused whom She only knew by face as one of the local police officers.
57. The witness [PW7] went on to state that it was the Accused who pulled a phone from his pockets and conversed with somebody after which two other officers arrived at the scene with one being armed with a firearm which he handed over to the Accused as he climbed a motor cycle and left. That, at that juncture the Accused was left alone and was held by the deceased who told him to leave the place. That, immediately the deceased turned around, she [PW7] saw gunshots being fired by the Accused downwards and that is when the deceased fell down.
58. The witnesses [PW7] indicted in cross-examination that one of the two additional police officers who arrived at the scene was the Accused, yet she had earlier indicated that the Accused was one of the first officers at the scene and that he was one of those who arrested the motor cyclist. She swore that the Accused was wearing police uniform on that material date and was the person holding the motor cycle. That, the Accused did not have a firearm but was later given one by a fellow officer.
59. Clearly, the entire evidence by Dino [PW7] was full of half- truths, probably imaginations and extremely in conflict with that of the rest of the civilian as well as the police officers who were at the material scene at the material time. It was evidence not worth of belief.
As for the evidence of Ezekiel [PW8] he stated that the Accused was one of the two additional police officers who arrived at the scene and was involved in an argument with deceased when a gunshot was fired. He further stated that he did not see who fired the shot. He was categorical that he did not witness the shooting.
60. This witness [PW8] who was the actual cause of the entire events which resulted in the death of the deceased did not in any way implic
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