REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAKURU CRIMINAL CASE NO. 84 OF 2010 REPUBLIC...........................................................................STATE VERSUS KOOL KUDATE...................................................1 ST ACCUSED MENTI KUDATE.................................................2 ND ACCUSED JUDGMENT The two accused persons namely KOOL KUDATE (hereinafter referred to as the 1 st accused) and MENTI KUDATE (hereinafter referred to as the 2nd accused) are jointly charged with the offence of MURDER CONTRARY TO SECTION 203 as read with SECTION 204 OF THE PENAL CODE. The particulars of the charge were that “On the 31st day of July 2010 at Naroosura area in Narok South District within Rift Valley Province murdered ELIJAH LIARAM” Both accuseds pleaded ‘Not Guilty’ to the charge and their trial commenced on 4/2/2014 before Hon Justice Anyara Emukule (retired). The Honourable Judge heard all the six (6) prosecution witnesses after which he placed both the accused onto their defence. At this point I took over the case and heard the defence. Both accused’s elected to give sworn statements and they called three (3) witnesses in support of their defence. PW1 JOSEPH PALATIA KAISERI, PW2 JONATHAN KAISUGE and PW4 JOSEPH NGUMAN all told the court that on 31/9/2010 at about 4.00 pm Masai elders were listening to a land dispute between the Kasasi, Kudate and Diareen families. All the family members made their representations after which the elders retreated to make a decision. The elders returned and gave their ruling that the land did not belong to any of the three families. Following that decision a fracas erupted in which the deceased was fatally assaulted. PW1 told the court that after the elders had rendered their decision the deceased stood up to make his comments. As he spoke the 1 st accused jumped up and hit the deceased on the head with his rungu and the deceaseds fell down. PW2 who was also at the scene told the court that as soon as the elders delivered their decision on the land dispute the 1 st and 2nd accused got up to protest. The 2nd accused held the deceased while the 1 st accused hit him on the head with a rungu. The deceased fell to the ground unconscious. He was rushed to hospital where he was admitted but later passed away whilst undergoing treatment. PW4 JOSEPH NGUMAN gave similar evidence. The fact of death of the deceased was proved beyond any doubt. PW3 SARAH NTANTUI LIORAM a daughter to the deceased told the court that she went to the mortuary where she identified the body of her late father to the doctor. PW5 DR. MUNDA OKEMUIDA was the pathologist who conducted the autopsy on the body of the deceased. He told the court that the deceased had a laceration of the skull involving a skull fracture. PW5 concluded that the cause of death was ‘severe head injury due to blunt trauma’. He filled and signed the post mortem report which was produced as an exhibit P. exb 1. The version of events as narrated by PW1 and PW2 was that it was the two accused who assaulted the deceased.
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However in defence the accused and his witnesses gave a totally different version of the events of that day. The accused persons told the court that after the elders delivered their verdict on the land dispute the deceased moved towards the 1 st accused and hit him on the back of the head with a rungu. The 1 st accused stated that after being hit he was rushed to hospital where he was treated and received stitches on his head. The accused did produce in court a copy of his treatment card D. exb 1. I have looked at the document. It shows that the accused was treated on an outpatient basis on 31/7/2010 at Naroosura Health Centre. The document indicates that the accused sustained a deep cut on the back of his head and was stitched. This treatment noted does confirm the defence of the accused and corroborated his defence. The 2nd accused in his defence stated that he was at the meeting in question. He confirms that the 1 st accused was assaulted during a fracas after the elders had delivered their decision on the land dispute. Thereafter the 2 nd accused and others rushed the 1st accused to hospital for treatment. The 2nd accused told the court that after that incident he remained in the Narok area and continued to attend his job at the Narok County but he was not arrested until March 2011 seven (7) months after the incident. It would appear then that the decision to arrest the 2 nd accused was an afterthought. Why did it take the police a full seven (7) months to apprehend a man who was at all times accessible in his home. DW3 ROBERT NCHOMPIRR told the court that he attended the meeting to resolve the land dispute. After the elders rendered their decision some of the parties present objected and a fracas arose. PW3 stated that during that fracas he saw the deceased hit the 1 st accused on the back of his head. DW3 categorically denies that it was the 2 accuseds who attacked the deceased. Similarly DW4 SOLOMON OLE TABO also told the court that during the fracas that erupted after the elders decision the deceased struck the 1st accused on the back of the head with a rungu. The evidence of all the defence witnesses is consistent and they all remain unshaken under cross-examination by the prosecution. Their evidence directly contradicts the testimony of PW1 and PW2 and effectively places a doubt on the prosecution case. As a court I must accord the benefit of this doubt to the two accused. It would appear that this was not a situation where the two accuseds launched an unprovoked attack on the deceased. The witnesses have all clearly stated that a fracas arose after the Masai elders rendered their verdict on a land dispute. People were all fighting and Masai men ordinarily carry swords and clubs on their person. In such a situation it would be difficult to pinpoint exactly who hit the deceased. The 1 st accused has proved that he was also injured during the milee. As such I find that the actus reus of the offence of murder has not been proved beyond reasonable doubt. I enter a verdict of ‘Not Guilty’ and I acquit both accuseds. Each accused person is to be set at liberty forthwith unless otherwise lawfully held. Dated in Nakuru their 10th day of November, 2017. Ms Cheruto holding brief for Ms Ndeda Mr. Bore holding brief for Mr. Ogolla Maureen A. Odero Judge
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