Republic v Elijah Chesire Kibor

PW4, David Kimaiyo Cheboia farmer testified that on 14 th July, 2010 at about 11.00 a.m. he witnessed the postmortem on the body of the deceased. PW5, Tula Kipkeo Suter alias Philemona Benjamin corroborated the evidence of PW3. He testified that he was among the villagers who visited the home of the accused and pleaded with him to stop beating his wife. On a second return to the home of the accused to further plead with him not to continue beating his wife, the accused started shooting from inside the house. That is how the deceased was hit by an arrow as he was closest to the house as he pleaded with the accused to open the door. He testified that although it was a little dark they were able to see that it was Dominic who had been shot.The police arrived later and took charge of the scene. PW6, Dr. Gilbert Cheruiyot of Iten Mission Hospital produced the postmortem report on behalf of Dr. Moses Chepking who conducted the postmortem on the body of the deceased on the 14th July, 2010. Dr. Moses Chepking formed the opinion that the cause of death was excessive blood loss with injury to the spinal code around the cervical causing the lungs to collapse leading to cardiac arrest. PW7, Magdalene Michael corroborated the evidence of PW3 and 5 and added that he was among the villagers who visited the home of the accused person to plead with him to stop beating his wife. She testified that the deceased was killed as he tried to persuade the accused to open his door and stop beating his wife. He also testified that the deceased had not in any way quarreled with the accused before the accused shot him. PW8, Chief Inspector Stanley Mulinge the investigating officer in the case summed up the evidence of PW1 to 7. In addition, he testified that during the postmortem an arrow head was removed from the body of the deceased which was handed over to him and he produced it in court as evidence. He also testified that the accused surrendered himself to the police voluntarily in the early hours of the next morning. The accused confided in a PC Rono of Tot Police Station that he had shot the deceased on the previous night because members of the public wanted to kill him. Upon return to the police station from the scene, PW8 interrogated the accused who appeared to be confessing to murdering the deceased. He thus contacted a Chief Inspector Said Bweta of Kapsowar Police Station in Marakwet West to take the confession of the accused. The accused was in turn escorted to Kapsowar Police Station where he recorded his statement. At the close of the prosecution’s case, the court ruled that the accused had a case to answer and he was put on his defence. He gave an unsworn statement of defence. He recalled that on the fateful night he joined a neighbour who had a fundraiser where he took some local brew. He then proceeded home where he found his wife had not arrived from the farm. He went and collected the animals from the field at 6.00 p.m. while the wife arrived home at 6.30 p.m. When he enquired from her where she had been, a quarrel between them ensued. He closed the door and as he was drank people could hear their arguments. They came and started storming the house and set it on fire. That is when he looked for an escape route. Unconsciously, he also picked some arrows and he started shooting in the dark so that he could pave his way for escape. He could not remember if he shot at any one. He ran to the bush and returned to the house at 3.00 a.m. He found people screaming and that is when he was informed that a neighbour had died. He then surrendered himself to Tot Police Station at 7.00 a.m. He was thereafter charged. SUBMISSIONS In submissions dated 14th October, 2014 learned State Counsel Job Mulati on behalf of the prosecution submitted that the prosecution had proved its case to the required standard. He submitted that there was direct evidence of PW2, 3, 4 and 7 that it is the accused who shot the deceased on the neck with an arrow and he died instantly. The accused had shot the deceased not only once but three times and he aimed at the neck which is a vital organ of the body.He also shot him from behind meaning that the deceased did not pose a danger to him. In that respect, Mr. Mulati submitted that the accused possessed the guilty mind to kill the deceased person. He was also not acting under any provocation or self defence. He urged the court to find him guilty and convict him. Learned Counsel, Mr. ArapMiteion behalf of the accused person on the other hand submitted that the

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prosecution did not prove its case to the required standard as its evidence was contradictory and insufficient. It had not established the cause of the death of the deceased person and the motive of the killing of the deceased. He submitted that the postmortem was not properly done as to establish the cause of the death as it was conducted by Clinical Officer as opposed to a medical doctor. He urged the court to acquit the accused. EVALUATION OF EVIDENCE The first issue for determination is the proof of the fact of the death and the cause of the death of the deceased. PW1 and 4 attended the postmortem exercise and they confirmed the deceased had died. PW2 and 7 also confirmed that the deceased died after being hit with an arrow. The evidence of PW1, 2 and 7 was further corroborated by that of PW3 and 5 who were present when the arrow was shot and they had it hit somebody although they were not immediately able to tell who had fallen down. They learnt later that it was the deceased who had been hit and died. In addition PW6 produced the postmortem form in respect of the deceased and the same confirmed that the deceased died of excessive blood loss with injuries to the spinal code around the cervical causing lungs to collapse leading to cardiac arrest. The point of the injury as observed by PW6 is consistent with the evidence of PW1 to 5 and PW8 who saw the point of injury around the neck. As to whether it is the deceased who caused the death of the accused, there is no doubt that when PW2, 3, 5 and 7 went to the house of the accused person he was locked therein with his wife and his wife was calling for help as the accused person was thoroughly beating her. Their evidence was that when they pleaded with the accused to open the door the second time, he started shooting from inside the house and thereafter escaped. There was no other person inside that house with the accused’s wife except the accused and so no one else other than the accused would have shot the deceased. Moreover, the accused surrendered himself to Tot Police Station on the following morning where he told PW8 that he had killed somebody. Although PW8 mentioned of a confession statement of the accused that was not produced in court, the same would have only corroborated the evidence of PW2, 3, 5 and 7. In that respect, its absence notwithstanding there is direct evidence particularly of PW2 and 7 that it is the accused who shot the deceased with the arrow. The arrow head that remained in his body was removed and exhibited in court. As to whether the accused possessed malice aforethought in killing the deceased, it is important to first define what malice aforethought is as provided by Section 206 of the penal Code thus; “Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances. (a) An intention to cause the death or to do grievous harm to any person, whether that person is the person actually killed or not; (b) Knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether that person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused; (c) An intent to commit a felony; (d) An intention by the act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony. In the present case, the accused knew that his act of shooting arrows which are lethal weapons was likely to kill or cause grievous harm to some person. It did not matter who the person who would be killed was. He acted without any provocation at all. He also did not shoot once but three times meaning that he actually intended to kill. The deceased had only accompanied other good samaritan neighbours to his house to try and plead with him to stop beating his wife. It just happened that the deceased who was

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closest to the house became the victim of the lethal arrow. For his actions, it is my view that he was possessed of the mind/mensrea to kill whoever had come to prevent him from beating his wife. He was therefore possessed of malice aforethought. On the issue of postmortem report, it is not true that the same was filled by a Clinical Officer as submitted by the defence counsel. PW6 Dr. Gilbert Cheruiyot was categorical that he was producing the same on behalf of Dr. Moses Chepking who did the postmortem and filled the form. In the upshot, I am not convinced with the accused defence which was choreographed to appear as if he acted in self defence. To the contrary, none of the neighbours who went to his house was armed. His assertion that they started stoning his house and torched it was not corroborated in any way. I therefore find him guilty as charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code and I convict him accordingly. It is so ordered. DATED and SIGNED this 24thday of June, 2015. G. W. NGENYE – MACHARIA JUDGE DELIVERED at NAIROBI this 2nd day of July, 2015. BY: G. K. KIMONDO JUDGE. In the presence of:1. Miss Karanja for the state. 2. Mr. Mitei for the accused.

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