REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KITALE CRIMINAL CASE NO. 40 OF 2012 REPUBLIC.....................................................................PROSEC UTOR VERSUS RKK W K K......................................................................................... ACCUSED J U D G M E N T 1. The first accused, R K and second accused , W K, are charged with murder, contrary to S.203 read with S.204 of the Penal Code, in that, on the 14th October 2012, at 0400 hrs in Elgeyo Marakwet County, murdered P B. 2. The case for the prosecution was that on the material night, screams were heard from the deceased's house. J K B (PW1), a brother to the deceased rushed to the house and found the house on fire. A child of the deceased informed him and others that the deceased was inside the burning house. He was joined at the scene by his brother, P K B (PW2) and others . 3. They put off the fire and entered the house only to find the deceased half naked and lying on the ground. She was already dead. Some small children in the house sustained fire burns. A village elder, Vincent Kaptaoi (PW3), arrived at the scene and found a crowd of people. He entered the deceased's burnt house and viewed her half naked body. He noted that she could have been strangled on the neck and suspected foul play. 4. The village elder-spotted the first accused at the scene. He noted that he (first accused) appeared nervous. He then suspected him. The suspicion became greater when he (PW3) noted that he (first Accused) was wearing clothes with stains resembling semen.The deceased seemed to have been raped before being killed. He (first accused) was arrested and handed over to the police. A second suspect was said to be the second accused. He disappeared from the area but was traced and arrested on 20th November 2012. 5. Dr. Patrick Isita (PW4) conducted a post mortem on the body of the deceased and compiled a report (P. Ex.1(a)) which he signed. He formed the opinion that the cause of death was fracture of the cervical spine C2-C3 vertebrae. PC James Kiarie (PW5), investigated the case and thereafter charged the two accused with the present offence. 6. He (PW5) visited the scene of the offence and found the naked body of the deceased under a bed. It
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appeared that she had been raped. The body was removed to the mortuary. He (PW5) indicated that the first accused was suspected of involvement in the offence by the clothes he was wearing while the second accused was implicated by an uncle who alleged that he disappeared after the offence. 7. The case for both accused was a denial of having committed the offence. Accused one indicated that he left his house at 7.00 a.m on the material date and found a crowd of people gathered at the deceased's home. The deceased was his aunt. He went to her home and found that she had died. He fell into shock and cried. He remained at the scene when the village elder (PW3) questioned his whereabouts on the previous night and suspected him because he was wearing dirty clothes. The village elder handed him over to the police who charged him with the present offence. 8. Accused two indicated that he was in Kisumu on 11th October 2012 where he had taken potatoes together with his uncle (PW2). On the way back home., they stopped over at Eldoret where he met a friend who offered him a job for Kshs.7,000/= per month. He accepted the offer and took up the job at a place called Kendu, but on the 20th November 2012, his uncle and the village elder (PW3) and others arrived there and arrested him for allegedly absconding duty. He was taken back to his home where he was met by a big crowd of people. The village elder tied him up with ropes. It was then alleged that he and the first accused had burnt the house of the deceased and that he disappeared after the act. He was thereafter handed to the police and charged with the present offence. The deceased was also her aunt. 9. From all the foregoing evidence, it is apparent that the cause of death was not disputed. Although the deceased's body was found inside her burnt house., she did not die from fire burns but from fracture of the cervical spine. It was suspected that she may have been strangled. The suspicion came from the village elder (PW3) but was overruled by the doctor (PW4) who said that the fracture of the cervical spine was caused by a massive force which was not specified. The doctor also overruled the suspicion that the deceased was raped. 10. There was no evidence that the massive force which caused the fracture of the cervical spine was inflicted by any of the accused. Indeed, there was no evidence that the massive force was inflicted by any person. The possibility that it could have been caused by a fall or falling object could not be overruled given that the deceased's house was on fire. 11. The suspicion cast upon the first accused due to the clothes he was wearing and the second accused due to having been away from home when the deceased was found dead was only mere suspicion which was unsupported by any evidence and which could not be taken as evidence of the two accuseds involvement in the death of the deceased. 12. The village elder (PW3) arrived at the scene and engaged himself in conjecture and that is why he picked on the first accused. The uncle to the second accused and brother to the deceased (PW2) did not implicate the second accused at all. He merely stated that the second accused was merely suspected. 13. Basically, the prosecution had no evidence against the two accused linking them to the death of the deceased. It is surprising that they were brought this far yet they would have been released immediately after investigations. The investigating officer (PW8) merely acted on whims and arraigned them in court for no apparent good reason. 14. In sum, the prosecution failed to discharge its burden of proof in this matter.The two accused are found not guilty as charged and are hereby acquitted. J. R. KARANJA JUDGE
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[ Delivered & signed this 1st day of July 2015.]
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