Republic v Philemon Toroitich alias Moses Kemboi Kibiwott

nor Mama Rael was called to the stand. Edwin Kiplagat, the brother of the accused, did not also testify either. 7. Three other witnesses testified. A clinical officer (PW2) confirmed that the accused was mentally fit to stand trial. The pathologist (PW3) produced a post mortem report made by his colleague (Dr. P. Murie) dated 2nd November 2009. The pathologist concluded that the cause of death was cardiovascular collapse due to internal haemorrhage. The bleeding resulted from trauma caused by a sharp object. The entry point was the left anterior chest wall penetrating through the lung and heart. 8. The last witness was Police Constable Fred Ipara (PW4). He arrived at the scene at 19:00 hours. He and his colleagues collected the body and took it to Iten District Hospital mortuary. In the meantime, his colleague, PC Asumbo, got a call from the District Officer that the accused had surrendered. PW4 rearrested the accused. He said the accused surrendered a bow and arrow. In cross-examination, he conceded that the arrow was not the one used to kill the deceased. PW4 said the accused at first gave his name as Philemon Toroitich. However, a brother of the accused who is known as Philemon Toroitich later came to the station and said the accused gave the police the wrong name. PW4 stated he was the arresting officer and did not investigate the matter. That closed the case for the prosecution. 9. On 23rd July 2014 the court issued a warrant of arrest against Edwin Kiplagat and another witness, Philemon Toroitich. The witnesses had not been arrested when the trial resumed on 20 th November 2014. On 21st January 2015 I summoned Chief Inspector Henry Zumba. He explained the difficulties the police encountered in tracing the witnesses. He said the witnesses had relocated from Ebotut forest to another area. Despite his assurances, and further mentions of the case, the warrants of arrest were never executed. 10. Section 203 of the Penal Code provides that any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder. There are three key ingredients that must be present in the offence of murder: first, the prosecution must prove beyond reasonable doubt the death of the deceased and the cause of that death; secondly, that the accused committed the unlawful act that led to the death; and, thirdly, that the accused was of malice aforethought. 11. No eye witness to the murder took to the stand. Like I pointed out, the evidence of PW1 was classic hearsay. PW1 did not witness the attack upon the deceased. Neither the woman known as Margaret Chebit nor Mama Rael was called to the stand. Edwin Kiplagat, the brother of the accused did not also testify either. As I have stated, the warrants of arrest against two material witnesses, Edwin Kiplagat and Philemon Toroitich, were not enforced by the police. The undertaking given to Court by Chief Inspector Henry Zumba on 21st January 2015 that he would arrest the witnesses came to zilch. 12. The evidence of PW1 and PW4 on its own is insufficient to place the accused on his defence. The simple truth is that the prosecution was forced by circumstances beyond its control to close the case prematurely. It left the case hanging on a thin strand of circumstantial evidence. Unfortunately there is no strong circumstantial evidence pointing irresistibly and exclusively to the culpability of the accused. In R v Kipkering arap Koske & another 16 EACA 135 (1949) the court held“In order to justify the inference of guilt, the inculpatory fact must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt” 13. The only fact that is not in doubt at this stage is that the deceased died from a penetrating injury through the lungs and heart. In short, if the accused were to elect to remain mum now, there would be no evidence to convict him. Granted those circumstances, I am unable to say that a prima facie case has been established against the accused. 14. The law on this subject was well settled in Bhatt v Republic [1957] E.A. 332 at 334“Remembering that the legal onus is always on the prosecution to prove its case beyond

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reasonable doubt, we cannot agree that a prima facie case is made out if, at the close of the prosecution, the case is merely one‘which on full consideration might possibly be thought sufficient to sustain a conviction.’ “This is perilously near suggesting that the court would not be prepared to convict if no defence is made, but rather hopes the defence will fill the gaps in the prosecution case. Nor can we agree that the question whether there is a case to answer depends only on whether there is‘some evidence, irrespective of its credibility or weight, sufficient to put the accused on his defence.’ “A mere scintilla of evidence can never be enough: nor can any amount of worthless discredited evidence. It is true, as Wilson, J., said, that the court is not required at that stage to decide finally whether the evidence is worthy of credit, or whether if believed it is weighty enough to prove the case conclusively: that final determination can only properly be made when the case for the defence has been heard. It may not be easy to define what is meant by a ‘prima facie case’, but at least it must mean one on which a reasonable tribunal, properly directing its mind to the law and the evidence could convict if no explanation is offered by the defence.” 15. On the totality of the evidence, and from my analysis of the legal authorities, I am not persuaded that the Republic has established a prima facie case sufficient to place the accused on his defence. Accordingly, under the provisions of section 306 (1) of the Criminal Procedure Code, I enter a finding of not guilty. The accused is hereby acquitted. It is so ordered. DATED, SIGNED and DELIVERED at ELDORET this 12th day of April 2016. GEORGE KANYI KIMONDO JUDGE Ruling read in open court in the presence ofAccused. Mr. J. K. Cheptarus for the accused. Ms. P. K. Mwaniki for the Republic. Mr. J. Kemboi, Court clerk.

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