High Court 2440 of 2015

or he too would be dealt with. The 1 st accused left with the deceased and locked PW2’s house from outside. PW2 stated that he heard a commotion outside for a short time and then silence. He was rescued the following day at about noon by some neighbours. They found the deceased lying behind his house. 7. In cross examination the witness clarified that although he indicated in his statement to the police that he went outside when he heard a commotion, the position is that the deceased and the 1 st accused actually entered into his house. He also explained the television set is about 10 metres away from the door. He retreated and agreed to the demands of the 1 st accused when he saw the arrows. He however did not see the 2nd accused person. 8. PW3 was the deceased’s brother. On 7th April, 2014, he was informed that the deceased had been attacked. When he went to Molo District Hospital where the deceased had been admitted, he found that he had already died. He noticed head injuries possibly inflicted by a rungu and arrow wounds on the body of the deceased. PW3 did not know any of the accused persons and could not identify them as the persons who killed the deceased. 9. PW5 was the investigating office, testified that the accused was arrested on different occasions and brought to the station by the officers from Sirikwa Police Station. According to his investigations, the deceased had fought with one of the accused persons and that his death was an act of revenge. He concluded that the accused persons were involved in the attack against the deceased. 10.PW6 conducted the post mortem on the body of the deceased and produced the report which was marked as “PEX 1”. When he examined the deceased, he found that he had injuries on his head, chest, internal abdomen, and lower limbs. These injuries were inflicted by both sharp and blunt objects. However the injuries inflicted by the blunt object caused his death. He opined that the cause of death was the severe head injury secondary to trauma. 11.The court found that the Prosecution had established a prima facie case against the accused persons and put them on their defence. 12.The 1st accused gave a sworn statement. He testified that on 6th April, 2012 he was at his mother’s house at Kaptembwa from noon to around 3.00pm. When he returned to his home, he was informed that there had been a robbery and the thief had managed to flee with the cow. Three months later, he was arrested and the arresting officer informed him that it was on account of the stolen cow. However, he was charged with this offence. It was his testimony that he did not know the deceased or his co-accused prior and denied committing the offence. 13.In cross examination the 1st accused admitted that he had made a statement in the police station but only after being beaten severely and could therefore not recall what he had said. 14.The statement was read out to him by the prosecutor. In it he stated that his co-accused called him on his mobile phone and informed him that he had been beaten by the deceased. To exert revenge, the 2nd accused gathered some men including the 1st accused, and they attacked the deceased with arrows. The 1st accused admitted that he attacked the deceased but stated that he only hit him once. After the statement was read to him in court, the accused person stated “ni hivyo”. 15.The 2nd accused also gave sworn testimony. He could not recall exactly where he was on the day the deceased was attacked. However he did not know the deceased or any of the prosecution witnesses. Prior to their arrest, the 2nd accused last saw the 1st accused in 2011 before he relocated with his parents. The 2nd accused denied having committed the offence with which he had been charged. DETERMINATION 16.Counsel in this case opted to rely on the evidence on record and did not make any further submissions. The issue for determination is whether the accused persons committed the offence of murder as charged. 17.The offence of murder is defined by Section 203 of the Penal Code, Cap 63, Laws of Kenya as follows“Any person who of malice aforethought causes death of another person by an unlawful act or

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omission is guilty of murder.” 18.The prosecution therefore is required to tender sufficient proof of the following three crucial ingredients in order to establish a charge of murder(a) the fact and cause of death of the deceased person; (b) that the death of the deceased was as a result of an unlawful act or omission by the accused persons; and (c) that such unlawful act or omission was committed with malice aforethought. 19.The fact and cause of death of the deceased was proved by the prosecution. PW6 who carried out postmortem on the deceased found injuries on his head, chest, abdomen and limbs. He was of the opinion that these injuries had been inflicted by both sharp and blunt objects. The severe head injury secondary to trauma, and which had been inflicted by a blunt object, was the cause of the deceased’s death. 20.The question that then follows is whether the evidence established that it was the accused persons who inflicted these fatal injuries on the deceased. Neither PW1 nor PW2 saw the accused persons beating the deceased. PW1 testified that when the men came to their house, the deceased was able to run to PW2’s house where they pursued him. PW2 also did not see the men who attacked the deceased as once the deceased was retrieved from his house, he was taken outside and PW2 was locked in. Although he heard a commotion outside he did not see what transpired. Nonetheless, the only conclusion that can be made from the evidence is that it was these men who attacked the deceased because after he was released to them that night, he was found beaten the following day. 21.I am also satisfied that the two accused were among these men. PW1 identified the 2nd accused, whom she had known as the deceased’s friend, as one of the men. She said that she saw him outside using the torch from her light and actually shouted his name and asked him what the problem was. She also heard him identify the deceased when he ran out of the house to the other men. She said that the 2nd accused and the gang chased the deceased to PW2’s house. 22.Her evidence identifying the 1st accused was not as clear. Nonetheless, the 1 st accused was properly identified by PW2. He said that the deceased and the 1st accused charged into his house that night. He was able to see them by the light from the television. He recognized the 1 st accused as the deceased’s friend and saw that he was carrying a bow and arrows. He also spoke to the 1 st accused who answered back and told him not to interfere. The 1 st accused, dragged the deceased outside to the other men who had been calling out for him. 23.The above evidence, established beyond reasonable doubt, that the two accused persons were among the men who attacked the deceased that night. It is not material who inflicted the fatal injury on the deceased. What was pertinent was that the accused persons acted in concert with other persons to commit an unlawful act. On that night, these men went to the deceased’s house to attack the deceased and their intention to actually inflict fatal injuries on him is manifested by the fact that they were armed with bows and arrows. It was the 2nd accused who identified the deceased to the rest of the gang. The 1st accused went to retrieve the deceased from PW2’s house where he had sought refuge and took him outside. In the circumstances I find that they are both culpable for the attack of the deceased and that his death was as a result of their actions. 24.For the above reasons, I find that the prosecution was able to establish the charges against the accused persons beyond reasonable doubt. I therefore find the accused persons guilty of the murder of the deceased, contrary to Section 203 of the Penal Code, and I convict them accordingly. Dated, Signed and Delivered at Nakuru this 26th day of August, 2015. A. MSHILA JUDGE

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