1. The accused VICTOR KIPKORIR CHEPCHIENG has been charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code. The particulars of the charge were that the accused on the 15th day of March,2017 at Kabiyet Sub-location, Kabiyet Location in Koibatek Sub- County within Baringo County murdered Consolata Jepkemboi Rotich. The accused denied the charge which culminated in the matter proceeding for full trial with the prosecution availing 10 witnesses in support of their case.
2. PW1 Valerie Chepngetich Ayabei testified that on 15th March,2017 at 9.00 a.m., she was assisting Erick Martim with household chores and as she entered Erick’s house, she found Consolata the deceased herein who was Erick’s employee lying facing down on the floor near the fire place. She went to call Erick’s employee one Oliver from the farm and showed her where Consolata was lying. She said she called the deceased but she did not respond. She then went to the house of Erick’s mother but met Eric on the way and informed him of what had happened to the deceased and he requested her to go with him. Erick went ahead of her as she followed him and she found Erick giving Consolata First Aid. She saw blood on the floor and next to Consolata’s head. She said that she did not see any weapon in the house and that she did not know what happened to Consolata.
3. PW2 Charles Bowen who is the deceased father informed court that at the material time, the deceased was working in a grocery in Eldoret and on 27th March, 2017 at 3.30 p.m., he went to Eldama Ravine Hospital Mortuary where he identified the body of his daughter and witnessed postmortem on his daughter’s body. He said the body had cut injury running from the forehead to the back.
4. PW3 Charles Yator Kiboi testified that on 22nd March, 2017 at 3.30 p.m, he was at Eldama Ravine sub-county Hospital Mortuary where he had gone to identify the body of her daughter, Consolata Jepkemboi Rotich to doctor Kamau who performed postmortem. PW4 Philemon Cheboi a cousin to the deceased joined pw3 on 22nd March,2017 at 3.30 p.m. to identify the body of deceased Consolata Jepkemboi Rotich to the doctor and witnessed postmortem at Eldama Ravine Hospital Mortuary.
5. PW5 Brian Kipkemboi Chepchieng testified that on 18th March,2017 at 11.00 a.m, he was at Mogotio having gone to stay with his mother. He said he waited for his brother Victor Kipkorir who was coming from Eldama Ravine to join him to Nakuru for shopping as victor was going to Technical University at Nairobi while he was going to Jomo Kenyatta, Eldoret. He said when his brother victor arrived, he was called by Joan from Eldama Ravine who asked him whether he was aware of what had happened at home and he inquired from his brother victor whether he knew what had happened but he responded to the negative. They proceeded to Nakuru for shopping and while on the way, they received a call from their Aunt asking him to go to Nakuru police station to confirm what had happened and when they went to OCS, they were informed one Consolata had been hurt. He said he had made some calls and left his brother at the police station and went back home. He said he did not know Consolata and victor who is his brother is the accused herein.
6. PW6 Erick Chepkwony Kiptebkut testified that in the morning of 15th March,2017, he was at his home in Eldama Ravine and at about 8.40 a.m., he left after assigning 6 casual workers construction works around the house and deceased Consolata who worked as a house help was in the house. He said he left the 6 workers and the deceased as he went to his brother’s house which is 600 meters from his house to see a sick cow. He said he met his son Victor and spoke to him for some time as he was supposed to leave to Technical University, Nairobi and he then left. He said Victor was to go through Mogotio where the mother was teaching to Nairobi. He said that he went to see the cow and called the veterinary officer and after about 20 minutes, he went back to his home and as he reached about 30 meters from his home, he met his worker Valerie Chepngetich who informed him that she had gone into his house and found the deceased had “fainted” in the kitchen. He requested her to go with him. He run to his home and found all the six (6) workers outside the house.
7. Pw6 went into the house and found the deceased squatting on the floor. He dragged her on the ground and started giving her First Aid and even tried mouth to mouth resuscitation but he realized she had died and on turning the body, he saw a lot of blood on the forehead. On looking at her further, he saw a cut on the head and the back and that is when he realized she had gone. He called the Assistant Chief, the Chief and the Chief informed the police of the incident at home and after about 40 minutes, the chief arrived at the scene followed by his Assistant Chief and then the police. He said police questioned the workers and looked for murder weapon but they did not find.
8. He said police took the body to Eldama Ravine hospital mortuary and after that he tried to call the accused but his phone was off and at around 5 pm, he got a call from Deputy OCS Nakuru asking him whether he knew the accused and he confirmed that he was his son and also confirmed that there had been an incident at home.
9. PW7 DR. Philip Wainaina Kamau testified a medical Superintendent Eldama Ravine Sub- County Hospital testified that on 22nd March 2017 at 4 p.m, he performed postmortem on the body of Consolata Chepkemboi Rotich at Eldama Ravine Sub- County Hospital upon the body being identified by Charles Kibowen and Philomen Chebii. He said the body had two cuts on the back of the vertex (top of the head) extending more to the left ear, front cuts and cuts through the skull exposing the bone of the skull and cutting through hemisphere brain body. He formed opinion that the cause of death was head injury due to cut by sharp object. He produced the postmortem report as Exhibit 1 in court.
10. PW 8 DR. Richard Kimutai Langat a Government Analyst based at Government Chemist Kisumu for 30 years testified that on 15th May,2017, he received police Exhibit memo form through police officer Rebecca Kwamboka from DCI Koibatek marked Eldama Ravine Police station CR871/48/2017 forwarding samples for DNA profile being
a) Khaki envelop containing blood stained blue jeans trouser, Khaki envelop marked B containing swab for Victor Kipkorir accused,
b) Khaki envelop marked C containing blood sample for accused Victor Kipkorir,
c) Khaki envelop marked D containing toe nail clippings from Consolata Chepkemoi deceased and
d) a Khaki envelop marked E containing blood samples from the deceased Conslota.
11. That on preliminary examination of exhibit (a), he found that the stains on the jeans was human blood.That he extracted the stains A and B and blood samples item C and DNA for item D and her blood samples and subjected to DNA analysis and he found that the DNA profile from the jeans =(A) matched DNA profile of the deceased and it had no DNA relationship with DNA profile of accused Victor. He prepared his report and signed on 22nd December, 2017.He produced in court as exhibits
12. PW9 James Mangondu No. 00273 Principal Investigation Officer attached to IPOA Mombasa testified that in the year 2017, he was attached to DC1 Koibatek in Eldama-Ravine and on 15th March,2017, he was in company of DCI -1P George Warichiu who informed him that there was a murder incident at Kabiyet. He together with officers and scene of crime personnel went to the homestead of Erick Kiptepkut a former Kenya Defence Force officer. Upon arrival, they found the deceased in Kitchen with visible head injuries. The scene of crime officers photographed the area. He said they did comprehensive search but they did not find the murder weapon. The body of the deceased was collected and taken to Eldama-Ravine Mortuary.
13. He said before leaving, they had an engagement with Kiptepkut who was the owner of the homestead and he informed them that the deceased was a house girl and on the material day, he had left the deceased with his son Victor at home since he had gone to his brother's homestead to attend to a sick cow. He said they learnt that the deceased had been found murdered and Victor had disappeared and he suspected his son was the murderer. They went to Eldama Ravine where the body was preserved for further investigation. At around 5 PM, the DCIO got a call from police in Nakuru informing him that there was a suspect confessing to have committed the murder in Kabiyet and was surrendering to them.
14. He said they went to Nakuru and collected the suspect who had been booked in Nakuru Police Station and they realized that the blue jeans had blood stains. Upon arrival at the police station in Eldama-Ravine the suspect was ordered to remove the trouser and wear a trouser taken there by his father.
15. He further stated that on 17th March,2017, Stephen Wambura swore an affidavit for custodial Orders and he was granted 6 days and the suspect was taken to Eldama-Ravine Hospital for DNA Samples being bucal swab after signing consent form. He confirmed that postmortem was performed by doctor Kamau on 22nd March,2017 and DNA samples were taken to Nairobi for analysis and was done by PC Kwamboka. He compiled the file and from his assessment it was clear that the deceased had been murdered by the accused.
16. He informed the Court that the accused admitted that he murdered the deceased due to bitterness as his father was having an affair with her. He compiled his file and forwarded it ODPP and they agreed with his findings and recommendations that the accused be charged with offence of murder. He produced DNA sampling form signed by the accused.
17. PW10 No.234793 CIP Augustine Kisembe testified that at the material time ,he was Deputy OCS Nakuru and on 15th March,2024, at around 5.30a.m, the accused Victor Kipkorir presented himself to his office claiming that he had killed a woman in a homestead within Eldama Ravine and on being asked why he did so, he said his father had divorced the mother about 2 years before and decided to marry another woman who had brought a lot of suffering at home and he decided to kill her using a panga.He said he asked the accused to give him his father’s phone number which he did and he confirmed what the accused told him from his father. He called Eldama Ravine police station to collect the accused. He said at the time of arrest, the accused was in company of his brother one Brian. He said accused was later picked by officers from Eldama Ravine and escorted to that station. He said the OB number recorded was O.B 9915/07/03/2017 which he produced as Exhibit No.5.
18. Upon the close of the prosecution’s case, the court found that a prima facie case had been established to warrant the accused person being placed on his defence.
DEFENCE EVIDENCE
19. The accused testified as DW1.He gave sworn evidence and called 3 witnesses. He testified that he is 28 years old and in the year 2017, he was 21 years old and was a student at Technical University of Kenya studying Diploma in land survey. He denied the charge. He testified that on 15th March,2017, he was supposed to go back to school in Nairobi.He said he was at his grandmother’s home in Kabiyet and he was to go through his mother’s house at Mogotio primary school where she was a school teacher and lived near the school. He said he left at around 8.50-9. 00 a.m using motor cycle from their neighbor Shadrack and used matatu from Eldama Ravine to Mogotio where he took about an hour.
20. He said that he had his bag with few belongings and was dressed in a black jean trouser and a white shirt and upon arrival at Mogotio, he charged his phone, showered, changed clothes and took tea then left home with his elder brother Brian Kemboi.He said he left wearing a blue trouser, blue T-shirt and cream jumper.
21. He said as they were on their way to Nakuru, they were called by their cousin and aunt who informed them that someone had been found dead at their home in Kabiyet. He said after the calls, they were advised to go to Nakuru police station and report to the OCS and at the police station, they were directed to the DCIO’s office who requested for his father’s number and then he was placed in custody. He said that he did not get any update until when he was picked by police from Eldama Ravine and that he was dressed the way he had left home. He said that he was in custody for over a week and while in custody, his cousin Irene used to take breakfast and clothes for change to him.
22. He said that blood samples were taken from him, mouth swab and clothes and the clothes taken were the ones he wore while heading to Nakuru. He said he knew the deceased Consalata who was their grandmother’s house help in Kabiyet and that their house is about 20 to 30 meters from their grandmother’s house.
23. He said there were about 10 people who were in his homestead on the day the deceased was murdered being himself, grandmother, his father, Valarie, deceased and 6 people working in the farm which is about 20 meters away and he had known deceased for about 2 weeks and that she was social. He said his parents did not have any differences and his mother used to go home every weekend and it is her mother who took the deceased to their home. He said he does not believe that the blue trouser had blood stains as he had a black trouser when he left Kabiyet and that he wore the blue trouser in Mogotio. He denied wearing the blue trouser in Kabiyet and said that they had no reason to link him with the murder.
24. The accused stated that his mother informed him that the police officer requested money but she did not give them and he believed that the blood was planted on the trouser on 24th March,2017 as the deceased’s body was still in the mortuary. He said that his samples were taken that day and the samples from the deceased were taken the same day. He said the trouser was taken from him at the hospital and that the blue jeans had been taken to him from his cousin’s place. He said his cousin had been asked to take back the clothes on 23rd March,2024 and that he had sets of clothes which he was interchanging.
25. He testified that after the trouser was taken he remained with one set of clothes. That he had worn the blue trouser which he changed at the District Hospital to a black trouser which was brought by his cousin. He said that the blue trouser had been washed about 3 times by his cousin.
26. The accused’s second witness Monica Kiplagat testified as DW2. she testified that she is the accused’s mother and in March,2017 she was teaching at Mogotio primary school and the accused was a student at Technical university. She said during lecturer’s strike, the accused went home from February to March, 2017 and that he went to her house in Mogotio where he left his luggage and went to Kabiyet to assist his father Eric Kiptekut. She said the deceased Consalata had been taken to the home by her sister in-law to assist her mother-in-law who was about 80 years and Consolata had stayed in the home for about 2 weeks at the time she died. She confirmed that on 15th March,2017, the accused was at their home at Kabiyet and he arrived at her house in Mogotio at 11 a.m. and found his brother Brian and prepared to go to college. She said accused did not appear like he was in fear and he was wearing a black trouser and a white T-shirt.
27. Dw2 said she had arrived from school at 9. 30 a.m and was with her son Brian when the accused arrived. She said the accused packed his clothes, showered and changed clothes; that he wore a blue jean trouser and a blue T-shirt and after they left, she went back to school. She said shortly after, she received a call from her husband and sister-in-law asking her if she had seen accused and she informed them that he had arrived and left with Brian. She said she called them and they said they had reached Nakuru and her sister in-law told her to tell accused and his brother to go to the nearest police station.
28. She said the blue trouser was clean when the accused left Mogotio and denied having disagreed with her husband. She said they have been working together supporting the 3 children in University and the children had not suffered. She said police asked for Kshs 100,000 from her on 17th march 2017 at 4 p.m so that he could assist in the case but she declined to give the money as her son had not committed an offence. She said police later asked for Kshs.50,000/= which she declined to give as her son had not committed the offence. She said she saw the deceased Consolata when she was taken their home and that she goes home all weekends. She further said that the accused did not appear scared when he arrived at Mogotio and that there was no reason for the accused to kill the deceased.
29. DW3 Shadrack Toroitich a motor cycle rider testified that on 15th March,2017, he received a call from Erick Chepchieng the deceased’s father who requested him to go and pick the accused. He went to the home and arrived at 9:00 a.m and called at the gate but the accused was unreachable and he went up to the homestead where they were and greeted the accused and his grandmother and then took the accused to stage. He said accused told him he was going to Mogotio and was carrying a bag. He said that the accused was wearing a white T-shirt and a black trouser.
30. He testified that the accused’s father is a neighbour and he confirmed that he knows the accused’s mother who is also his customer whom he normally carries over the weekend. He said he picks her from stage in town to Kabiyet and return her on Monday morning. He said that the accused’s parents live together.
31. DW4 Irene Tuitoek a cousin to the accused testified that in the year 2017, she was a student in Eldama Ravine Bartek institute. She said she learnt from her parents that accused had been arrested as murder suspect. She confirmed that she took tea, food and clothes to accused to change while in police cells and that she purchased 2 trousers and one short which she was taking to him to change in the evening.
32. She further stated that around 23rd March,2017 when he took food to the accused, a police officer requested her to carry extra clothes the next day and whenever she took the clothes to him, he would change and the police would give her clothes to go and wash. She said accused had blue trouser but she took to him a black trouser and washed the blue trouser 2 or 3 times. She said she did not see blood in the clothes and the blue trouser did not have blood stains. She said that it was her who washed the clothes and the police officer remained with 2 pairs of clothes.
33. Upon the close of both the prosecution and the accused’s case, the accused filed written submissions his counsel.
ACCUSED’S SUBMISSIONS
34. The defence counsel submitted that for the prosecution to sustain a conviction for the offence of murder, the ingredients of the offence which were stated in the case of Republic v Isaac Mathenge Maina [2018] eKLR must be proved; that the ingredients of the offence of murder were equally discussed in the case of Republic v Mohammed Dadi Kokane & 7 others [2014] eKLR.
35. The defence counsel submit that it is not in dispute that the deceased died. That PW1 Valerie Jepng'etich Ayabei, PW2- Charles Bowen, PW3- Charles Yator Kiboi, PW4 Philemon Cheboi, and PW6 Erick Chepkwony Kiptebkut all confirmed to this Honorable Court the deceased person died and it is therefore not in dispute that the deceased died.
36. On the cause of such death, defence counsel submit that the Pw7 Dr. Philip Wainaina Kamau who performed postmortem confirmed that the deceased sustained cuts which went through the skull exposing the bone of the skull and cutting through the hemisphere of brain caused by a sharp object but the murder weapon was not recovered.
37. On the proof that the deceased met his death as a result of an unlawful act or omission on the part of the accused person, they submit that there are only two links that the prosecution wants to cling on to confirm and aver the assertion that the accused in this case committed/caused the unlawful death of the deceased;
i. Confession
ii. DNA samples extracted from the accused vis-a-vis the drop of blood allegedly on accused trouser.
38. On confession, counsel submit that S.25A provide that:
“1. A confession or any admission of a fact leading to the proof of guilt made by an accused person is not admissible and shall not be proved as against such person unless it is made in court before a judge, a magistrate or before a police officer (other than the investigating officer being an officer not below the rank of inspector of police and a third parts of the person's choice."
39. That Pursuant to the above sub-section (2) of S.25A of the Evidence Act, the Evidence (out of court confession) Rules, 2009, were enacted. Its effect was to establish that the rules were indeed complied with by Prosecution witness No 10: CIP Augustine Kisembe when he recorded the confession from the accused. Such obligation lies with the prosecution in an enquiry into the manner in which a confession or a statement was recorded for determination of whether or not it is admissible in evidence against the accused.That generally, a statement by an accused person is not admissible in evidence against him unless it is proved to have been voluntary. This would only be possible in a trial within a trial, a concept which is deeply entrenched in our criminal justice system.
40. Counsel submit that the accused denies that he confessed to PW10- CIP Augustine Kisembe that he killed somebody and in Tuwamoi v. Uganda [19761 EA 91 the court stated that:-
“A court should act with caution on a confession which has been repudiated or retracted and that before founding a conviction on such a confession it must be fully satisfied in all the circumstances of the case that the confession is true.”
41. That whereas there is a possibility that the accused told PW10 CIP Augustine Kisembe that he had killed somebody, there is no evidence at all advanced by the prosecution to corroborate the evidence of PW10 that the accused killed the deceased herein. That there is therefore no basis to act on the evidence of PW10 that the accused confessed to him of having killed somebody.
42. On the issue of the DNA samples extracted from the accused vis-a-vis the drop of blood allegedly on accused trouser, counsel submit that the Pw9- James Mangondu is the one who came up with the issue of blood stains being spotted on the trouser of the accused person. That shockingly or surprisingly he is the only one, who saw this blood stains.That Pw5- Brian Kipkemoi Chepchieng informed the Court that they left home, with the accused person in tow and as they left, the accused person was dressed in a blue jeans trouser; this blue jeans trouser did not have any blood stains, or rather he never saw any blood stains on the said trouser. That the arresting officer Pw10 CIP Augustine Kisembe, ought to have come in aid of the prosecutor's case, but nevertheless he equally never saw this blood stains on the said trouser which therefore casts several aspersions on existence of blood stains on the trouser of the accused person.
43. He submitted that Pw9 did not look truthful to the court; he informed the Court that he is the one who escorted the accused person to hospital and caused the DNA samples to be extracted. He fell short of informing the Court that at the hospital, he took the trouser of the accused person and smeared some blood of the deceased over it.
44. That he went ahead and informed the court that the Doctor extracted the DNA samples and handed them over to him. He kept them in Hospital in a fridge for preservation, and then they took them to government chemist. That the exhibits were in his custody after the extraction. That he stated that they asked the accused to remove the trouser for analysis, at the hospital too, something he elected to hide from the court.
45. That what was glaring from his testimony was that, there is no other independent witness apart from him, who saw this trouser with blood stains at all. That the defence come to the aid of the accused and reinforced the fact that this trouser had no blood stains as follows: Dw1 who is the accused person Victor Kipkorir Chepchieng, informed the Court that, he left home in Kabiyet at 8:00 Am. He was wearing a black trouser with a white shirt and his testimony was reinforced by Dw2- Monica Chepsarno Kiplagat who equally informed the Court that, when the accused arrived home, he was wearing a black trouser with a white shirt. This position was buttressed by Dw3 Shadrack Toroitich, who informed the court that he is the one who picked the accused at Kabiyet home. He said when he picked him the accused was wearing a black trouser with a white shirt.
46. Counsel further submit that this blue trouser which the prosecution are claiming had blood stains was worn for the first time in Mogotio that day. That the same never stepped or was never worn in Kabiyet where the alleged crime occurred and there is therefore no iota of imagination that the said trouser could have had blood stains since it was worn for the first time in Mogotio.
47. That the big question would therefore be, who placed this blood spot on the said trouser; that the accused person together with Dw4 informed the court that, the said trouser was picked from him at the hospital on 23rd March 2017 which information was collaborated by Dw4 who informed the court what transpired that day and how he brought 2 trousers to the accused person that day, since one was to be taken away from him. The defence submit that there is a possibility that the Pw9 picked the trouser and took it to the morgue. That the accused person informed the court that his trouser was taken from him at the hospital near the morgue by Pw9 James Mangondu at the hospital. That the possibility is equally rife that, it was at this point that he picked a drop of blood and smeared it on the trouser with sole intention of framing up the accused person.
48. That the basis for framing the accused was well expounded by Dw2- Monica Chepsarno Kiplagat, the mother of the accused person who investigating officer in this case wanted some money from her so that he could assist the accused herein but she refused to give the money leading to a grudge that made the investigating officer frame up the accused person of the offence before court. That from the above submissions it is imperative to return the finding, that there was no blood stains on the trouser of the accused as alleged by Pw9.
49. On who committed the unlawful act, the defence submit that no single witness came forth and said he saw the accused person murdering the deceased and attempt to advance a theory that accused confessed before him that he committed the offence, the investigating officer did not reduce it to a confession for reasons best known to him.
50. Further Pw9 informed the court that there were more than 10 people in the homestead but suspected only accused as having committed the offence and did not to interrogate all the other available witness, hence compromising the investigations.
51. On whether there was malice aforethought, defence submit that malice aforethought has been looked into by the law, in homicide cases on the charge under Section 203 of the Penal Code. That Pw 9 made a desperate attempt to bring in the issue of malice by stating that the accused person was not happy as the deceased had an affair with his father and accused and his siblings were suffering but the allegation was thwarted by the defence witnesses; that accused said they were living with both parents and his parents have no difference at all and it will be wrong to say that their father abandoned his children and mother; that the accused’s mother Dw2 stated that she is in good relationship with the accused’s father. She said she works in Mogotio but goes home every week end and she is the one who welcomed the deceased who was brought by her sister in-law Roda to her home and the fact that the accused’s parents had no differences was confirmed by Dw3 and there was therefore no malice aforethought to warrant the accused killing the deceased. The defence urged this court to acquit the accused person who has immensely suffered going through trial for offence he did not commit for a period in excess of 8 years.
ANALYSIS AND DETERMINATION
52. I have considered evidence adduced herein together with submissions by defence. Section 203 of the penal code under which the accused has been charged provide the ingredients for the offence of murder as hereunder: -
a) Proof of the fact as well as the cause of the death of the deceased persons.
b) Proof that the death of the deceased’s resulted from an unlawful act or omission on the part of the accused persons.
c) Proof that such unlawful act or omission was committed with malice aforethought.”
a) Proof of death
53. In this case, there was no doubt as to the fact of death of the deceased. PW 1 who said on 15th March,2017, she found the deceased lying on the floor and notified PW 6 who went and discovered that the deceased had succumbed to cut wounds on the head. PW 2, PW3, and PW 4 who were the relatives of the deceased identified the body of the deceased at the mortuary. PW7 was the pathologist who said that he performed postmortem on the body of the deceased on the 22nd March,2017. That he formed an opinion that the cause of death was head injury due to cut by sharp object. He produced the postmortem report as Exhibit 1 in court. From the foregoing, there is no doubt at all that the deceased died.
b) Cause of death and whether the accused caused the death of the deceased
54. As regards the cause of death, PW7 was the pathologist who said that he performed postmortem on the body of the deceased on the 22nd March,2017. That he formed an opinion that the cause of death was head injury due to cut by sharp object.
55. As to whether the deceased met her death as a result of an unlawful act or omission on the part of the accused person, it is clear that there was no direct evidence that the accused caused the death of the deceased.
56. Proof in criminal cases can either be by direct evidence or circumstantial evidence. When a witness, such as an eyewitness, asserts actual knowledge of a fact, that witness' testimony is direct evidence. On the other hand, evidence of facts and circumstances from which reasonable inferences may be drawn is circumstantial evidence. Therefore, where circumstantial evidence meets the legal threshold, it may well be a basis for finding the accused person culpable of the offence charged. In the case of Neema Mwandoro Ndurya v. R [2008] eKLR, the Court of Appeal cited with approval the case of R vs. Taylor Weaver and Donovan (1928) 21 Cr. App. R 20 where the court stated that:-
“Circumstantial evidence is often said to be the best evidence. It is the evidence of surrounding circumstances which by intensified examination is capable of proving a proposition with accuracy of mathematics. It is no derogation of evidence to say that it is circumstantial.”
57. Further, in the case of Sawe –vs- Rep [2003] KLR 364 the Court of Appeal stated as follows:-
“In order to justify on circumstantial evidence, the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypotheses than that of his guilt; Circumstantial evidence can be a basis of a conviction only if there is no other existing circumstances weakening the chain of circumstances relied on; The burden of proving facts which justify the drawing of this inference from the facts to the exclusion of any other reasonable hypothesis of innocence is on the prosecution. This burden always remains with the prosecution and never shifts to the accused.”
58. And in R. vs. Kipkering Arap Koske & Another [1949] 16 EACA 135, in the Court of Appeal for Eastern Africa had this to say:-
“In order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of his guilt. The burden of proving facts which justify the drawing of this inference from the facts to the exclusion of any reasonable hypothesis of innocence is on the prosecution, and always remains with the prosecution. It is a burden which never shifts to the party accused.”
59. Further in the case of Abanga Alias Onyango vs. Rep CR. A No.32 of 1990 (UR) the Court of Appeal set out the principles to apply in order to determine whether the circumstantial evidence adduced in a case are sufficient to sustain a conviction. These are:
“It is settled law that when a case rests entirely on circumstantial evidence, such evidence must satisfy three tests:-
(i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established,
(ii) (ii) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(iii) (iii) the circumstances taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else.”
60. And in Mwangi vs. Republic [1983] KLR 327 Madan, Potter JJA and Chesoni Ag. J. A. held:-
“In order to draw the inference of the accused’s guilt from circumstantial evidence, there must be no other co -existing circumstances which would weaken or destroy the inference. The circumstantial evidence in this case was unreliable. It was not of a conclusive nature or tendency and should not have been acted on to sustain the conviction and sentence of the accused.”
61. Therefore, for this court to find the accused guilty, the inculpatory facts must be incompatible with innocence and incapable of explanation upon any other hypothesis than that of guilt. This proposition was well stated in the case of Simon Musoke vs. Republic [1958] EA 715 as follows:-
“It is also necessary before drawing the inference of the accused’s guilt from circumstantial evidence to be sure that there are no other co-existing circumstances which would weaken or destroy the inference.”
62. In Teper v. R [1952] AC at p. 489 the Court had this to say:-
“Circumstantial evidence must always be narrowly examined, if only because evidence of this kind may be fabricated to cast suspicion on another. It is also necessary before drawing the inference of accused’s guilt from circumstantial evidence to be sure that there are no co-existing circumstances which could weaken or destroy the inference.”
63. Having considered the above authorities, I now focus on evidence adduced herein. There is no doubt that no one witnessed the accused inflict injuries on the deceased. What follows is whether there is sufficient evidence to infer that the accused unlawful committed the act which caused the death of the deceased. There is no doubt that the accused was at the scene; he confirmed that he was at the scene together with his parent’s employees 6 of who were doing construction work and pw2 Valari chepngetich Ayabei who found the deceased death. This was confirmed by his father PW 7 who said he had left the accused and the deceased at home that morning and on his way back home he found the accused running away from the scene, he informed the investigations officer that he suspected the accused had killed the deceased. From the foregoing besides evidence of pw7 and pw2, accused placed himself at the scene.
64. Further PW8 DR. Richard Kimutai Langat who testified that upon performing DNA analysis he found that blood stains on exhibit (a) (jeans) was human blood and it matched DNA profile of the deceased. This confirmed the evidence gathered by the investigating officer PW9 James Mangondu. Even though he did not record confession from the accused, he ordered the accused to remove the blood attained jeans whose blood was confirmed by the Government analyst to match the DNA profile of the deceased. His evidence was corroborated by PW10 No.234793 CIP Augustine Kisembe who was Deputy OCS Nakuru police station who received accused after he surrendered himself to police and explained why he was presenting himself to police.
65. From the foregoing, there is strong circumstantial evidence linking the accused to the murder of the deceased and find that there is circumstantial evidence linking the accused to unlawful act which caused the death of the deceased.
c) Whether the accused had malice aforethought
66. From the way the deceased was killed and the circumstances surrounding the death, there is no doubt the accused who suspected that the deceased had an affair with his father, planned and executed the death. The injury was so severe to the extent of killing the deceased immediately.There is no doubt that the accused was aware that the injuries he was inflicting would result in the death of the deceased. From the foregoing, I find that the prosecution proved beyond any reasonable doubt that the death of the deceased was caused with malice aforethought. I therefore proceed to find accused guilty as charged and convict him of the offence of murder contrary to Section 203 as read with 204 of the Penal Code.
67. FINAL ORDERS: -
1) Accused is hereby convicted of the offence of murder contrary to section 203 as read with section 204 of the penal code.
2) Right of appeal 14 days.
In the presence of:
- Ms. Omari for state
- Mr.Kemboi for accused
- Court Assistant – Karanja
- Accused present
2. PW1 Valerie Chepngetich Ayabei testified that on 15th March,2017 at 9.00 a.m., she was assisting Erick Martim with household chores and as she entered Erick’s house, she found Consolata the deceased herein who was Erick’s employee lying facing down on the floor near the fire place. She went to call Erick’s employee one Oliver from the farm and showed her where Consolata was lying. She said she called the deceased but she did not respond. She then went to the house of Erick’s mother but met Eric on the way and informed him of what had happened to the deceased and he requested her to go with him. Erick went ahead of her as she followed him and she found Erick giving Consolata First Aid. She saw blood on the floor and next to Consolata’s head. She said that she did not see any weapon in the house and that she did not know what happened to Consolata.
3. PW2 Charles Bowen who is the deceased father informed court that at the material time, the deceased was working in a grocery in Eldoret and on 27th March, 2017 at 3.30 p.m., he went to Eldama Ravine Hospital Mortuary where he identified the body of his daughter and witnessed postmortem on his daughter’s body. He said the body had cut injury running from the forehead to the back.
4. PW3 Charles Yator Kiboi testified that on 22nd March, 2017 at 3.30 p.m, he was at Eldama Ravine sub-county Hospital Mortuary where he had gone to identify the body of her daughter, Consolata Jepkemboi Rotich to doctor Kamau who performed postmortem. PW4 Philemon Cheboi a cousin to the deceased joined pw3 on 22nd March,2017 at 3.30 p.m. to identify the body of deceased Consolata Jepkemboi Rotich to the doctor and witnessed postmortem at Eldama Ravine Hospital Mortuary.
5. PW5 Brian Kipkemboi Chepchieng testified that on 18th March,2017 at 11.00 a.m, he was at Mogotio having gone to stay with his mother. He said he waited for his brother Victor Kipkorir who was coming from Eldama Ravine to join him to Nakuru for shopping as victor was going to Technical University at Nairobi while he was going to Jomo Kenyatta, Eldoret. He said when his brother victor arrived, he was called by Joan from Eldama Ravine who asked him whether he was aware of what had happened at home and he inquired from his brother victor whether he knew what had happened but he responded to the negative. They proceeded to Nakuru for shopping and while on the way, they received a call from their Aunt asking him to go to Nakuru police station to confirm what had happened and when they went to OCS, they were informed one Consolata had been hurt. He said he had made some calls and left his brother at the police station and went back home. He said he did not know Consolata and victor who is his brother is the accused herein.
6. PW6 Erick Chepkwony Kiptebkut testified that in the morning of 15th March,2017, he was at his home in Eldama Ravine and at about 8.40 a.m., he left after assigning 6 casual workers construction works around the house and deceased Consolata who worked as a house help was in the house. He said he left the 6 workers and the deceased as he went to his brother’s house which is 600 meters from his house to see a sick cow. He said he met his son Victor and spoke to him for some time as he was supposed to leave to Technical University, Nairobi and he then left. He said Victor was to go through Mogotio where the mother was teaching to Nairobi. He said that he went to see the cow and called the veterinary officer and after about 20 minutes, he went back to his home and as he reached about 30 meters from his home, he met his worker Valerie Chepngetich who informed him that she had gone into his house and found the deceased had “fainted” in the kitchen. He requested her to go with him. He run to his home and found all the six (6) workers outside the house.
7. Pw6 went into the house and found the deceased squatting on the floor. He dragged her on the ground and started giving her First Aid and even tried mouth to mouth resuscitation but he realized she had died and on turning the body, he saw a lot of blood on the forehead. On looking at her further, he saw a cut on the head and the back and that is when he realized she had gone. He called the Assistant Chief, the Chief and the Chief informed the police of the incident at home and after about 40 minutes, the chief arrived at the scene followed by his Assistant Chief and then the police. He said police questioned the workers and looked for murder weapon but they did not find.
8. He said police took the body to Eldama Ravine hospital mortuary and after that he tried to call the accused but his phone was off and at around 5 pm, he got a call from Deputy OCS Nakuru asking him whether he knew the accused and he confirmed that he was his son and also confirmed that there had been an incident at home.
9. PW7 DR. Philip Wainaina Kamau testified a medical Superintendent Eldama Ravine Sub- County Hospital testified that on 22nd March 2017 at 4 p.m, he performed postmortem on the body of Consolata Chepkemboi Rotich at Eldama Ravine Sub- County Hospital upon the body being identified by Charles Kibowen and Philomen Chebii. He said the body had two cuts on the back of the vertex (top of the head) extending more to the left ear, front cuts and cuts through the skull exposing the bone of the skull and cutting through hemisphere brain body. He formed opinion that the cause of death was head injury due to cut by sharp object. He produced the postmortem report as Exhibit 1 in court.
10. PW 8 DR. Richard Kimutai Langat a Government Analyst based at Government Chemist Kisumu for 30 years testified that on 15th May,2017, he received police Exhibit memo form through police officer Rebecca Kwamboka from DCI Koibatek marked Eldama Ravine Police station CR871/48/2017 forwarding samples for DNA profile being
a) Khaki envelop containing blood stained blue jeans trouser, Khaki envelop marked B containing swab for Victor Kipkorir accused,
b) Khaki envelop marked C containing blood sample for accused Victor Kipkorir,
c) Khaki envelop marked D containing toe nail clippings from Consolata Chepkemoi deceased and
d) a Khaki envelop marked E containing blood samples from the deceased Conslota.
11. That on preliminary examination of exhibit (a), he found that the stains on the jeans was human blood.That he extracted the stains A and B and blood samples item C and DNA for item D and her blood samples and subjected to DNA analysis and he found that the DNA profile from the jeans =(A) matched DNA profile of the deceased and it had no DNA relationship with DNA profile of accused Victor. He prepared his report and signed on 22nd December, 2017.He produced in court as exhibits
12. PW9 James Mangondu No. 00273 Principal Investigation Officer attached to IPOA Mombasa testified that in the year 2017, he was attached to DC1 Koibatek in Eldama-Ravine and on 15th March,2017, he was in company of DCI -1P George Warichiu who informed him that there was a murder incident at Kabiyet. He together with officers and scene of crime personnel went to the homestead of Erick Kiptepkut a former Kenya Defence Force officer. Upon arrival, they found the deceased in Kitchen with visible head injuries. The scene of crime officers photographed the area. He said they did comprehensive search but they did not find the murder weapon. The body of the deceased was collected and taken to Eldama-Ravine Mortuary.
13. He said before leaving, they had an engagement with Kiptepkut who was the owner of the homestead and he informed them that the deceased was a house girl and on the material day, he had left the deceased with his son Victor at home since he had gone to his brother's homestead to attend to a sick cow. He said they learnt that the deceased had been found murdered and Victor had disappeared and he suspected his son was the murderer. They went to Eldama Ravine where the body was preserved for further investigation. At around 5 PM, the DCIO got a call from police in Nakuru informing him that there was a suspect confessing to have committed the murder in Kabiyet and was surrendering to them.
14. He said they went to Nakuru and collected the suspect who had been booked in Nakuru Police Station and they realized that the blue jeans had blood stains. Upon arrival at the police station in Eldama-Ravine the suspect was ordered to remove the trouser and wear a trouser taken there by his father.
15. He further stated that on 17th March,2017, Stephen Wambura swore an affidavit for custodial Orders and he was granted 6 days and the suspect was taken to Eldama-Ravine Hospital for DNA Samples being bucal swab after signing consent form. He confirmed that postmortem was performed by doctor Kamau on 22nd March,2017 and DNA samples were taken to Nairobi for analysis and was done by PC Kwamboka. He compiled the file and from his assessment it was clear that the deceased had been murdered by the accused.
16. He informed the Court that the accused admitted that he murdered the deceased due to bitterness as his father was having an affair with her. He compiled his file and forwarded it ODPP and they agreed with his findings and recommendations that the accused be charged with offence of murder. He produced DNA sampling form signed by the accused.
17. PW10 No.234793 CIP Augustine Kisembe testified that at the material time ,he was Deputy OCS Nakuru and on 15th March,2024, at around 5.30a.m, the accused Victor Kipkorir presented himself to his office claiming that he had killed a woman in a homestead within Eldama Ravine and on being asked why he did so, he said his father had divorced the mother about 2 years before and decided to marry another woman who had brought a lot of suffering at home and he decided to kill her using a panga.He said he asked the accused to give him his father’s phone number which he did and he confirmed what the accused told him from his father. He called Eldama Ravine police station to collect the accused. He said at the time of arrest, the accused was in company of his brother one Brian. He said accused was later picked by officers from Eldama Ravine and escorted to that station. He said the OB number recorded was O.B 9915/07/03/2017 which he produced as Exhibit No.5.
18. Upon the close of the prosecution’s case, the court found that a prima facie case had been established to warrant the accused person being placed on his defence.
DEFENCE EVIDENCE
19. The accused testified as DW1.He gave sworn evidence and called 3 witnesses. He testified that he is 28 years old and in the year 2017, he was 21 years old and was a student at Technical University of Kenya studying Diploma in land survey. He denied the charge. He testified that on 15th March,2017, he was supposed to go back to school in Nairobi.He said he was at his grandmother’s home in Kabiyet and he was to go through his mother’s house at Mogotio primary school where she was a school teacher and lived near the school. He said he left at around 8.50-9. 00 a.m using motor cycle from their neighbor Shadrack and used matatu from Eldama Ravine to Mogotio where he took about an hour.
20. He said that he had his bag with few belongings and was dressed in a black jean trouser and a white shirt and upon arrival at Mogotio, he charged his phone, showered, changed clothes and took tea then left home with his elder brother Brian Kemboi.He said he left wearing a blue trouser, blue T-shirt and cream jumper.
21. He said as they were on their way to Nakuru, they were called by their cousin and aunt who informed them that someone had been found dead at their home in Kabiyet. He said after the calls, they were advised to go to Nakuru police station and report to the OCS and at the police station, they were directed to the DCIO’s office who requested for his father’s number and then he was placed in custody. He said that he did not get any update until when he was picked by police from Eldama Ravine and that he was dressed the way he had left home. He said that he was in custody for over a week and while in custody, his cousin Irene used to take breakfast and clothes for change to him.
22. He said that blood samples were taken from him, mouth swab and clothes and the clothes taken were the ones he wore while heading to Nakuru. He said he knew the deceased Consalata who was their grandmother’s house help in Kabiyet and that their house is about 20 to 30 meters from their grandmother’s house.
23. He said there were about 10 people who were in his homestead on the day the deceased was murdered being himself, grandmother, his father, Valarie, deceased and 6 people working in the farm which is about 20 meters away and he had known deceased for about 2 weeks and that she was social. He said his parents did not have any differences and his mother used to go home every weekend and it is her mother who took the deceased to their home. He said he does not believe that the blue trouser had blood stains as he had a black trouser when he left Kabiyet and that he wore the blue trouser in Mogotio. He denied wearing the blue trouser in Kabiyet and said that they had no reason to link him with the murder.
24. The accused stated that his mother informed him that the police officer requested money but she did not give them and he believed that the blood was planted on the trouser on 24th March,2017 as the deceased’s body was still in the mortuary. He said that his samples were taken that day and the samples from the deceased were taken the same day. He said the trouser was taken from him at the hospital and that the blue jeans had been taken to him from his cousin’s place. He said his cousin had been asked to take back the clothes on 23rd March,2024 and that he had sets of clothes which he was interchanging.
25. He testified that after the trouser was taken he remained with one set of clothes. That he had worn the blue trouser which he changed at the District Hospital to a black trouser which was brought by his cousin. He said that the blue trouser had been washed about 3 times by his cousin.
26. The accused’s second witness Monica Kiplagat testified as DW2. she testified that she is the accused’s mother and in March,2017 she was teaching at Mogotio primary school and the accused was a student at Technical university. She said during lecturer’s strike, the accused went home from February to March, 2017 and that he went to her house in Mogotio where he left his luggage and went to Kabiyet to assist his father Eric Kiptekut. She said the deceased Consalata had been taken to the home by her sister in-law to assist her mother-in-law who was about 80 years and Consolata had stayed in the home for about 2 weeks at the time she died. She confirmed that on 15th March,2017, the accused was at their home at Kabiyet and he arrived at her house in Mogotio at 11 a.m. and found his brother Brian and prepared to go to college. She said accused did not appear like he was in fear and he was wearing a black trouser and a white T-shirt.
27. Dw2 said she had arrived from school at 9. 30 a.m and was with her son Brian when the accused arrived. She said the accused packed his clothes, showered and changed clothes; that he wore a blue jean trouser and a blue T-shirt and after they left, she went back to school. She said shortly after, she received a call from her husband and sister-in-law asking her if she had seen accused and she informed them that he had arrived and left with Brian. She said she called them and they said they had reached Nakuru and her sister in-law told her to tell accused and his brother to go to the nearest police station.
28. She said the blue trouser was clean when the accused left Mogotio and denied having disagreed with her husband. She said they have been working together supporting the 3 children in University and the children had not suffered. She said police asked for Kshs 100,000 from her on 17th march 2017 at 4 p.m so that he could assist in the case but she declined to give the money as her son had not committed an offence. She said police later asked for Kshs.50,000/= which she declined to give as her son had not committed the offence. She said she saw the deceased Consolata when she was taken their home and that she goes home all weekends. She further said that the accused did not appear scared when he arrived at Mogotio and that there was no reason for the accused to kill the deceased.
29. DW3 Shadrack Toroitich a motor cycle rider testified that on 15th March,2017, he received a call from Erick Chepchieng the deceased’s father who requested him to go and pick the accused. He went to the home and arrived at 9:00 a.m and called at the gate but the accused was unreachable and he went up to the homestead where they were and greeted the accused and his grandmother and then took the accused to stage. He said accused told him he was going to Mogotio and was carrying a bag. He said that the accused was wearing a white T-shirt and a black trouser.
30. He testified that the accused’s father is a neighbour and he confirmed that he knows the accused’s mother who is also his customer whom he normally carries over the weekend. He said he picks her from stage in town to Kabiyet and return her on Monday morning. He said that the accused’s parents live together.
31. DW4 Irene Tuitoek a cousin to the accused testified that in the year 2017, she was a student in Eldama Ravine Bartek institute. She said she learnt from her parents that accused had been arrested as murder suspect. She confirmed that she took tea, food and clothes to accused to change while in police cells and that she purchased 2 trousers and one short which she was taking to him to change in the evening.
32. She further stated that around 23rd March,2017 when he took food to the accused, a police officer requested her to carry extra clothes the next day and whenever she took the clothes to him, he would change and the police would give her clothes to go and wash. She said accused had blue trouser but she took to him a black trouser and washed the blue trouser 2 or 3 times. She said she did not see blood in the clothes and the blue trouser did not have blood stains. She said that it was her who washed the clothes and the police officer remained with 2 pairs of clothes.
33. Upon the close of both the prosecution and the accused’s case, the accused filed written submissions his counsel.
ACCUSED’S SUBMISSIONS
34. The defence counsel submitted that for the prosecution to sustain a conviction for the offence of murder, the ingredients of the offence which were stated in the case of Republic v Isaac Mathenge Maina [2018] eKLR must be proved; that the ingredients of the offence of murder were equally discussed in the case of Republic v Mohammed Dadi Kokane & 7 others [2014] eKLR.
35. The defence counsel submit that it is not in dispute that the deceased died. That PW1 Valerie Jepng'etich Ayabei, PW2- Charles Bowen, PW3- Charles Yator Kiboi, PW4 Philemon Cheboi, and PW6 Erick Chepkwony Kiptebkut all confirmed to this Honorable Court the deceased person died and it is therefore not in dispute that the deceased died.
36. On the cause of such death, defence counsel submit that the Pw7 Dr. Philip Wainaina Kamau who performed postmortem confirmed that the deceased sustained cuts which went through the skull exposing the bone of the skull and cutting through the hemisphere of brain caused by a sharp object but the murder weapon was not recovered.
37. On the proof that the deceased met his death as a result of an unlawful act or omission on the part of the accused person, they submit that there are only two links that the prosecution wants to cling on to confirm and aver the assertion that the accused in this case committed/caused the unlawful death of the deceased;
i. Confession
ii. DNA samples extracted from the accused vis-a-vis the drop of blood allegedly on accused trouser.
38. On confession, counsel submit that S.25A provide that:
“1. A confession or any admission of a fact leading to the proof of guilt made by an accused person is not admissible and shall not be proved as against such person unless it is made in court before a judge, a magistrate or before a police officer (other than the investigating officer being an officer not below the rank of inspector of police and a third parts of the person's choice."
39. That Pursuant to the above sub-section (2) of S.25A of the Evidence Act, the Evidence (out of court confession) Rules, 2009, were enacted. Its effect was to establish that the rules were indeed complied with by Prosecution witness No 10: CIP Augustine Kisembe when he recorded the confession from the accused. Such obligation lies with the prosecution in an enquiry into the manner in which a confession or a statement was recorded for determination of whether or not it is admissible in evidence against the accused.That generally, a statement by an accused person is not admissible in evidence against him unless it is proved to have been voluntary. This would only be possible in a trial within a trial, a concept which is deeply entrenched in our criminal justice system.
40. Counsel submit that the accused denies that he confessed to PW10- CIP Augustine Kisembe that he killed somebody and in Tuwamoi v. Uganda [19761 EA 91 the court stated that:-
“A court should act with caution on a confession which has been repudiated or retracted and that before founding a conviction on such a confession it must be fully satisfied in all the circumstances of the case that the confession is true.”
41. That whereas there is a possibility that the accused told PW10 CIP Augustine Kisembe that he had killed somebody, there is no evidence at all advanced by the prosecution to corroborate the evidence of PW10 that the accused killed the deceased herein. That there is therefore no basis to act on the evidence of PW10 that the accused confessed to him of having killed somebody.
42. On the issue of the DNA samples extracted from the accused vis-a-vis the drop of blood allegedly on accused trouser, counsel submit that the Pw9- James Mangondu is the one who came up with the issue of blood stains being spotted on the trouser of the accused person. That shockingly or surprisingly he is the only one, who saw this blood stains.That Pw5- Brian Kipkemoi Chepchieng informed the Court that they left home, with the accused person in tow and as they left, the accused person was dressed in a blue jeans trouser; this blue jeans trouser did not have any blood stains, or rather he never saw any blood stains on the said trouser. That the arresting officer Pw10 CIP Augustine Kisembe, ought to have come in aid of the prosecutor's case, but nevertheless he equally never saw this blood stains on the said trouser which therefore casts several aspersions on existence of blood stains on the trouser of the accused person.
43. He submitted that Pw9 did not look truthful to the court; he informed the Court that he is the one who escorted the accused person to hospital and caused the DNA samples to be extracted. He fell short of informing the Court that at the hospital, he took the trouser of the accused person and smeared some blood of the deceased over it.
44. That he went ahead and informed the court that the Doctor extracted the DNA samples and handed them over to him. He kept them in Hospital in a fridge for preservation, and then they took them to government chemist. That the exhibits were in his custody after the extraction. That he stated that they asked the accused to remove the trouser for analysis, at the hospital too, something he elected to hide from the court.
45. That what was glaring from his testimony was that, there is no other independent witness apart from him, who saw this trouser with blood stains at all. That the defence come to the aid of the accused and reinforced the fact that this trouser had no blood stains as follows: Dw1 who is the accused person Victor Kipkorir Chepchieng, informed the Court that, he left home in Kabiyet at 8:00 Am. He was wearing a black trouser with a white shirt and his testimony was reinforced by Dw2- Monica Chepsarno Kiplagat who equally informed the Court that, when the accused arrived home, he was wearing a black trouser with a white shirt. This position was buttressed by Dw3 Shadrack Toroitich, who informed the court that he is the one who picked the accused at Kabiyet home. He said when he picked him the accused was wearing a black trouser with a white shirt.
46. Counsel further submit that this blue trouser which the prosecution are claiming had blood stains was worn for the first time in Mogotio that day. That the same never stepped or was never worn in Kabiyet where the alleged crime occurred and there is therefore no iota of imagination that the said trouser could have had blood stains since it was worn for the first time in Mogotio.
47. That the big question would therefore be, who placed this blood spot on the said trouser; that the accused person together with Dw4 informed the court that, the said trouser was picked from him at the hospital on 23rd March 2017 which information was collaborated by Dw4 who informed the court what transpired that day and how he brought 2 trousers to the accused person that day, since one was to be taken away from him. The defence submit that there is a possibility that the Pw9 picked the trouser and took it to the morgue. That the accused person informed the court that his trouser was taken from him at the hospital near the morgue by Pw9 James Mangondu at the hospital. That the possibility is equally rife that, it was at this point that he picked a drop of blood and smeared it on the trouser with sole intention of framing up the accused person.
48. That the basis for framing the accused was well expounded by Dw2- Monica Chepsarno Kiplagat, the mother of the accused person who investigating officer in this case wanted some money from her so that he could assist the accused herein but she refused to give the money leading to a grudge that made the investigating officer frame up the accused person of the offence before court. That from the above submissions it is imperative to return the finding, that there was no blood stains on the trouser of the accused as alleged by Pw9.
49. On who committed the unlawful act, the defence submit that no single witness came forth and said he saw the accused person murdering the deceased and attempt to advance a theory that accused confessed before him that he committed the offence, the investigating officer did not reduce it to a confession for reasons best known to him.
50. Further Pw9 informed the court that there were more than 10 people in the homestead but suspected only accused as having committed the offence and did not to interrogate all the other available witness, hence compromising the investigations.
51. On whether there was malice aforethought, defence submit that malice aforethought has been looked into by the law, in homicide cases on the charge under Section 203 of the Penal Code. That Pw 9 made a desperate attempt to bring in the issue of malice by stating that the accused person was not happy as the deceased had an affair with his father and accused and his siblings were suffering but the allegation was thwarted by the defence witnesses; that accused said they were living with both parents and his parents have no difference at all and it will be wrong to say that their father abandoned his children and mother; that the accused’s mother Dw2 stated that she is in good relationship with the accused’s father. She said she works in Mogotio but goes home every week end and she is the one who welcomed the deceased who was brought by her sister in-law Roda to her home and the fact that the accused’s parents had no differences was confirmed by Dw3 and there was therefore no malice aforethought to warrant the accused killing the deceased. The defence urged this court to acquit the accused person who has immensely suffered going through trial for offence he did not commit for a period in excess of 8 years.
ANALYSIS AND DETERMINATION
52. I have considered evidence adduced herein together with submissions by defence. Section 203 of the penal code under which the accused has been charged provide the ingredients for the offence of murder as hereunder: -
a) Proof of the fact as well as the cause of the death of the deceased persons.
b) Proof that the death of the deceased’s resulted from an unlawful act or omission on the part of the accused persons.
c) Proof that such unlawful act or omission was committed with malice aforethought.”
a) Proof of death
53. In this case, there was no doubt as to the fact of death of the deceased. PW 1 who said on 15th March,2017, she found the deceased lying on the floor and notified PW 6 who went and discovered that the deceased had succumbed to cut wounds on the head. PW 2, PW3, and PW 4 who were the relatives of the deceased identified the body of the deceased at the mortuary. PW7 was the pathologist who said that he performed postmortem on the body of the deceased on the 22nd March,2017. That he formed an opinion that the cause of death was head injury due to cut by sharp object. He produced the postmortem report as Exhibit 1 in court. From the foregoing, there is no doubt at all that the deceased died.
b) Cause of death and whether the accused caused the death of the deceased
54. As regards the cause of death, PW7 was the pathologist who said that he performed postmortem on the body of the deceased on the 22nd March,2017. That he formed an opinion that the cause of death was head injury due to cut by sharp object.
55. As to whether the deceased met her death as a result of an unlawful act or omission on the part of the accused person, it is clear that there was no direct evidence that the accused caused the death of the deceased.
56. Proof in criminal cases can either be by direct evidence or circumstantial evidence. When a witness, such as an eyewitness, asserts actual knowledge of a fact, that witness' testimony is direct evidence. On the other hand, evidence of facts and circumstances from which reasonable inferences may be drawn is circumstantial evidence. Therefore, where circumstantial evidence meets the legal threshold, it may well be a basis for finding the accused person culpable of the offence charged. In the case of Neema Mwandoro Ndurya v. R [2008] eKLR, the Court of Appeal cited with approval the case of R vs. Taylor Weaver and Donovan (1928) 21 Cr. App. R 20 where the court stated that:-
“Circumstantial evidence is often said to be the best evidence. It is the evidence of surrounding circumstances which by intensified examination is capable of proving a proposition with accuracy of mathematics. It is no derogation of evidence to say that it is circumstantial.”
57. Further, in the case of Sawe –vs- Rep [2003] KLR 364 the Court of Appeal stated as follows:-
“In order to justify on circumstantial evidence, the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypotheses than that of his guilt; Circumstantial evidence can be a basis of a conviction only if there is no other existing circumstances weakening the chain of circumstances relied on; The burden of proving facts which justify the drawing of this inference from the facts to the exclusion of any other reasonable hypothesis of innocence is on the prosecution. This burden always remains with the prosecution and never shifts to the accused.”
58. And in R. vs. Kipkering Arap Koske & Another [1949] 16 EACA 135, in the Court of Appeal for Eastern Africa had this to say:-
“In order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of his guilt. The burden of proving facts which justify the drawing of this inference from the facts to the exclusion of any reasonable hypothesis of innocence is on the prosecution, and always remains with the prosecution. It is a burden which never shifts to the party accused.”
59. Further in the case of Abanga Alias Onyango vs. Rep CR. A No.32 of 1990 (UR) the Court of Appeal set out the principles to apply in order to determine whether the circumstantial evidence adduced in a case are sufficient to sustain a conviction. These are:
“It is settled law that when a case rests entirely on circumstantial evidence, such evidence must satisfy three tests:-
(i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established,
(ii) (ii) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(iii) (iii) the circumstances taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else.”
60. And in Mwangi vs. Republic [1983] KLR 327 Madan, Potter JJA and Chesoni Ag. J. A. held:-
“In order to draw the inference of the accused’s guilt from circumstantial evidence, there must be no other co -existing circumstances which would weaken or destroy the inference. The circumstantial evidence in this case was unreliable. It was not of a conclusive nature or tendency and should not have been acted on to sustain the conviction and sentence of the accused.”
61. Therefore, for this court to find the accused guilty, the inculpatory facts must be incompatible with innocence and incapable of explanation upon any other hypothesis than that of guilt. This proposition was well stated in the case of Simon Musoke vs. Republic [1958] EA 715 as follows:-
“It is also necessary before drawing the inference of the accused’s guilt from circumstantial evidence to be sure that there are no other co-existing circumstances which would weaken or destroy the inference.”
62. In Teper v. R [1952] AC at p. 489 the Court had this to say:-
“Circumstantial evidence must always be narrowly examined, if only because evidence of this kind may be fabricated to cast suspicion on another. It is also necessary before drawing the inference of accused’s guilt from circumstantial evidence to be sure that there are no co-existing circumstances which could weaken or destroy the inference.”
63. Having considered the above authorities, I now focus on evidence adduced herein. There is no doubt that no one witnessed the accused inflict injuries on the deceased. What follows is whether there is sufficient evidence to infer that the accused unlawful committed the act which caused the death of the deceased. There is no doubt that the accused was at the scene; he confirmed that he was at the scene together with his parent’s employees 6 of who were doing construction work and pw2 Valari chepngetich Ayabei who found the deceased death. This was confirmed by his father PW 7 who said he had left the accused and the deceased at home that morning and on his way back home he found the accused running away from the scene, he informed the investigations officer that he suspected the accused had killed the deceased. From the foregoing besides evidence of pw7 and pw2, accused placed himself at the scene.
64. Further PW8 DR. Richard Kimutai Langat who testified that upon performing DNA analysis he found that blood stains on exhibit (a) (jeans) was human blood and it matched DNA profile of the deceased. This confirmed the evidence gathered by the investigating officer PW9 James Mangondu. Even though he did not record confession from the accused, he ordered the accused to remove the blood attained jeans whose blood was confirmed by the Government analyst to match the DNA profile of the deceased. His evidence was corroborated by PW10 No.234793 CIP Augustine Kisembe who was Deputy OCS Nakuru police station who received accused after he surrendered himself to police and explained why he was presenting himself to police.
65. From the foregoing, there is strong circumstantial evidence linking the accused to the murder of the deceased and find that there is circumstantial evidence linking the accused to unlawful act which caused the death of the deceased.
c) Whether the accused had malice aforethought
66. From the way the deceased was killed and the circumstances surrounding the death, there is no doubt the accused who suspected that the deceased had an affair with his father, planned and executed the death. The injury was so severe to the extent of killing the deceased immediately.There is no doubt that the accused was aware that the injuries he was inflicting would result in the death of the deceased. From the foregoing, I find that the prosecution proved beyond any reasonable doubt that the death of the deceased was caused with malice aforethought. I therefore proceed to find accused guilty as charged and convict him of the offence of murder contrary to Section 203 as read with 204 of the Penal Code.
67. FINAL ORDERS: -
1) Accused is hereby convicted of the offence of murder contrary to section 203 as read with section 204 of the penal code.
2) Right of appeal 14 days.
In the presence of:
- Ms. Omari for state
- Mr.Kemboi for accused
- Court Assistant – Karanja
- Accused present