REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT BOMET CRIMINAL CASE NO. 10 OF 2016 REPUBLIC.....................................PROSECUTOR -VERSUSDOMINIC KIPLANGAT RONO..........ACCUSED JUDGMENT The accused is charged with the offence of murder Contrary to Section 203 as ready with Section 204 of the penal Code. The particulars are that on the 15th day of June 2016 at Kapkoros village within Bomet County, murdered PENEDY CHELANGAT. The prosecution in this case called eight witnesses in support of their case. The prosecution called one witness, the Accused gave unsworn statement. Brief facts - The prosecution case. Erick Kipkemoi Chipchirchir (PW2) was on the 15th day of June 2016 resting in his house when he received information at about 8.00 p.m from one Gerald that there was a huge crowd of people at a nearby church building. They proceeded to check what could be the cause and found the accused who was conversing by use of a phone. He gave them the phone to listen to whom he was talking with. A man at the other end of conversation told him to confirm whether what his brother was saying was true in that he had killed his girlfriend. In shock he checked around and saw somebody lying beside a bed of flowers. They got hold of the Accused and instructed his colleagues to check whether the victim was dead. After confirmation neighbours were called. The area chief arrived at the scene and called the police. The Accused and the body of the victim were taken away. The area chief a Mr. Paul Kibyegon Koech (PW3) testified to have gone to the scene at around 8.30 p.m. after receiving a call from a lady who had told him that a girl had been murdered and the body lay near a church compound. Upon arrival at the scene he found when the Accused had been detained by members of public. The victim was lying on the ground with injuries on the head. She appeared to have been throttled with the use of a belt. Blood was oozing from her mouth and nose. Upon arrival the suspect was taken away and so was the body by police. Langat Kimutai Chipchirchir (PW4) is a businessman at Kapkoros. He received the report of the murder of Penedy Chelangat while at home. he proceeded to the scene and saw the body of his niece lying on the ground. She appeared to have been throttled with a belt which was strapped around the neck. He knew the Accused who was a tea plucker at Kapkoros. He (the accused) was staying together with the Deceased in a relationship though not legally married. David Koech (PW5) a relative of the Deceased was at home at night when he was called by telephone and was informed that his niece was murdered while near a church compound. He proceeded to the scene and found the body lying near the door of a kitchen belonging to the church. She had injuries on the face and blood was oozing from the mouth and the nose. There was a belt that was strapped round her neck. The Accused was at the scene having been detained by police officer. He also testified that the Accused was in a relationship with the deceased and they were staying together. The deceased had two children but not with the accused.
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The post mortem examination was conducted by DR. Mutai (PW7). The body externally had a huge blunt injury on the forehead approximately 5 cm x 5 cm. There was presence of blood oozing from the mouth, nostrils and ears. The right side of the head was swollen. The right side of the face was also swollen. There was a bruise on the neck dark in colour and which appeared as a strangulation mark which was prominent around the neck. Internally the trachea was compressed. As a result of the examination the Doctor formed the opinion that cause of death was secondary to very severe blunt head injury. The Accused gave an unsworn statement in which he stated that he was previously working at Florida Bar as a waiter and that on the 15 th day of June 2016 at about 11.00 p.m he left for home. On the way, he passed near a church. He heard screams and decided to go and check. Suddenly he heard shouts “arrest him” “arrest him”. He was beaten by people who were saying that he had killed. He was later taken to Bomet police Station where he was later charged with murder. In this instant case the accused does not deny having been at the scene of murder on the day and time in question but he states that he was merely a passerby. On the same night at about 7.30 p.m. he had been spotted at Florida bar Kapkoros trading centre by David Kibet (PW1) who had sold him cigarettes. This Kibet told the court that he did not see the accused in the company of the deceased. Erick Kipkemoi (PW2) did testify to have found the accused at about 8.00 p.m. at the scene talking by the use of a mobile phone. When he was asked why he was at the scene at that time he handed over the phone to the witness who conversed with somebody who was saying that he was the brother to the accused and asked the witness to confirm whether he had killed his girlfriend as he had alleged. It was upon checking around that the witness saw the dead body of the deceased. The accused alleges to have passed by the scene at about 11.00 p.m. Paul Kibyegon Koech (PW3) testified to have received a call at 8.30 p.m and was informed of the murder of young girl and the detention of the Accused at the scene by members of public. This witness had proceeded to the scene and found the accused having been detained by members of public. PW4 (Langat Kimutai) had also received a call at 8.30 p.m. to the effect that his niece had been murdered and the accused had been detained by members of public. Upon arrival at the scene he found the body of the Deceased and the accused who had been detained by members of public. I do agree with the defence counsel that there are areas of investigation which were not properly addressed. The first one is the allegation by PW2 that he had found the Accused conversing with his brother and he was handed over the phone by accused to converse with his brother. This brother was not availed as a witness so as to corroborate the evidence of PW2 nor was the call data from the provider availed in court. However, the presence of the accused at the scene of murder, so soon after the incident calls for interrogation. There is evidence which is not disputed that the Deceased and the accused were in a relationship and were staying together. The question which comes to mind is whether their presence together at the church compound and which was the scene of murder was by sheer coincidence. In this case no prosecution witness testified to have seen the accused kill the deceased. What is before the court is circumstantial evidence. In the case of Republic –vs- Kipkering Arap Koskei & Another 16EACA the court held:- “In order to justify the inference of guilty, 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”. To reach the legal threshold it must meet the principles set out in the case of Abanya alias Onyango V.R CR A No 32 of 1990 (JR) where the court of appeal held;- “It is settled law that when a case rests entirely on circumstantial evidence, such evidence must satisfy three tests 1. The circumstances from which an inference of guilty is sought to be drawn, must be cogently and firmly established 2. Those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused 3. 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.
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In the instant case, though the Accused was not found in the act of inflicting the fatal blows on the deceased he was found outside the church kitchen resting on the wall conversing by use of a phone. The body of the deceased was lying not far from where the accused was several metres away near the kitchen door. Though the accused defence is that he found a crowd near the church at around 11.00 p.m. after duty, there is evidence that he left Florida bar at around7.30 p.m and he was found at the scene at 8.30 p.m. but not 11.00 p.m. as he alleges. He was in a relationship with the Deceased. He had the opportunity to inflict the fatal blows on the deceased. Section 203 of the penal code defines murder thus:- “Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder”. Section 206 defines malice aforethought in the following:- “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 of 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 harm is caused or not, or by a wish that it may not be cause’ c. An intent to commit a felony d. …….” Dr. Mutai (PW7) who examined the body of the Deceased was of the opinion that the cause of death was cardio respiratory arrest secondary to very severe blunt head injury possibly inflicted with great force by a blunt object. In this instant case the blunt object was not recovered but what was recovered was a belt which was found strapped around the neck of the Deceased. Its apparent therefore that a lot of force was used in inflicting the blows that caused the death of the deceased. The one that inflicted those blows must have intended to cause the death or do grievous harm to the deceased. I am satisfied that malice aforethought was proved. I am satisfied that the circumstantial evidence adduced in court points to the Accused as the murderer. He is found guilty of the offence of murder Contrary to Section 203 as read with Section 204 of the Penal Code and is convicted accordingly under Section 322 of the CPC. Judgement delivered dated and signed in open court this 6th day of October 2017 in the presence of learned counsel for the prosecution Mr. Barasa learned counsel for the defence, Mrs Kirui holding brief Koske for the Accused, court assistant Rotich. M. MUYA JUDGE 6/10/17 Mr. Barasa – I don’t have the previous records. The offence was uncalled for it was a heinous one. We all for heavy punishment to serve as a deterrent and retribution to the affected victims. Mrs. Kirui Court – Mention on 17/10/2017. Remanded in custody. M. MUYA JUDGE
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6/10/17 17/10/17 Coram – Before Hon. M. Muya – Judge Barasa for state CA- Sammy Koske for the Accused Barasa for the state The matter is for mention for mitigation. Court – File placed aside. Mitigation The Accused is aged 26 years. He is married with two children. He is a first offender. He is apologetic. He is also asking the court for a non-custodial sentence. The offence was committed under influence of alcohol. He has reflected on his life. He has embraced Christianity. He prays for leniency. That’s all M. MUYA JUDGE 17/10/2017 Court- Probation Officer Report on 3/11/2017. M. MUYA JUDGE 17/10/2017 3/11/17 Before Hon. M Muya – J Barasa – for state Grace – CA Accused- Mugumya holding brief Koske for the Accused. Barasa for the state This matter is for production of a probation officer’s report. Court – Mention is 15/11/2017. M. MUYA JUDGE 3/11/17 15/11/17
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Coram: Before Hon. M. Muya – J Barasa for state Rotich – CA Koske for the accused Barasa for the state The mater is coming today for probation. Probation officer- The file was brought to our attention yesterday. We are requesting for an adjournment. We pray for mention on 28/11/2017. Court- Mention 28/11/2017. M. MUYA JUDGE 15/11/2017 29/11/17 Coram: Before Hon. M. Muya – J CA- Kiprotich Barasa for state Kenduiwa holding brief Koske for the Accused. This matter was for mention yesterday. The probation officer is in court. Probation officer report is ready. Sentencing I have taken into consideration the mitigating factors adduced on behalf of the Accused by his counsel and the probation report. However, the offence of murder carries a mandatory death sentence. The Accused is sentenced to suffer death as per law provided. Right of appeal explained. M. MUYA JUDGE 27/11/17
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