Republic v Benjamin Bett

7. PW3 was Phillip Kipngetich. He is a neighbor of the accused. He testified that the wife of the accused, Nelly, told him that she heard that the accused was involved in the murder. It is instructive that PW3 was arrested by the police. 8. PW4 was Violet Vihenda. She and four other women were conned by a man known as Vuji. She said Vuji was the same person as the accused. She identified him at the dock. The accused had led them to a shamba pretending he could sell them green maize. They agreed to buy the maize for Kshs 9,800. The accused asked them to pay Kshs 2000 to fuel a tractor. They spent a total of Kshs 17,000 in the process. The accused left them in search of the tractor. He disappeared into the thin air. On 8th October 2011, PW4 was summoned by the police at Songhor Police Station to record a statement. She then learnt of the murder. 9. PW5 was Police Constable Nderitu. He and PW6, Sergeant Odede, arrested the accused. They received a tip from an informer. They went to Kibukwa and found the accused standing on the side of the road talking on his cell phone. When the police alighted from their car, the accused took off. He dropped his bag and cell phone. The items were picked up by Sergeant Odede. The police gave chase but the accused disappeared into a sugar plantation. They sought for tracking dogs from Nandi hills police Station. They did not get the accused. 10. Later, at about 5:50 p.m., PW5 was standing outside the Poto Poto Police Post when he saw someone dressed like the suspect. The suspect was talking to a boda boda operator. He arrested him. PW5 said he confirmed that the accused was the same person they had seen earlier at Kibukwa. The accused was then transferred to Songhor Police Station. That narrative was largely corroborated by PW6. 11. PW7 was Andrew Rotich. He is a brother of the deceased. On 7th October 2011, he and Joseph Ngetich identified the body of the deceased at Nandi Hills Hospital for postmortem purposes. The autopsy was carried out by Dr. Ruto. The Republic initially called a Dr. Emmanuel Ruto (PW8) who was not the author of the postmortem form. The State stood him down. The report (exhibit 2) was eventually produced by Dr. Ambrose Oluoch (PW10) under the provisions of section 77 of the Evidence Act. 12. The conclusion in the autopsy report was that the death resulted from a “severe penetrative abdominal/chest injury; and, deep neck cut wound (slit throat)”. Dr. Oluoch also produced a report as to the mental fitness of the accused (exhibit 1). He concluded that the accused was fit to stand trial. 13. PW9 was Inspector Samuel Mandila. He was the investigating officer. On 3rd October 2011, he went to the scene. He found the body of the deceased lying in a pool of blood. He arrested some suspects. The name of the accused was mentioned as well as one Kipchumba (who is still at large). He said that after interrogating some suspects in the cells, the accused was implicated in the murder. He said that a boy, Kimutai, overheard the wife of accused saying the accused killed the deceased. The boy was not called to the stand, notwithstanding that he had been bonded. 14. Upon cross examination, PW9 conceded that he got his information from PW3; and, that the latter was one of the people he had arrested. He said that PW4 also implicated the accused. He said that Julius Kemboi had a land dispute with deceased. He testified that the deceased was following up on the fraud by the accused against PW4 and other women. He was aware of a formal complaint about the scam. He was not present when the accused was arrested. 15. When the accused was paced on his defence, he made an unsworn statement. He protested his innocence. He said he is a broker in the business of green maize. He said he thought he was to answer charges of obtaining by false pretences. He was surprised to be charged with murder. He said the witnesses merely suspected him. He knew the deceased. He said they had no dispute. He denied killing the deceased. He admitted that he ran away at Kibukwa when uniformed police alighted from a private car. He said he had no idea why the other suspects, including Michael Tanui and Robert Kipkemei were released. 16. The learned defence counsel filed written submissions on 2nd March 2017. The learned Prosecution

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Counsel elected not to file final submissions. I have paid heed to the evidence and the defence submissions. 17. 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.” 18. There are three key ingredients that must be present to complete 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. Malice aforethought is the mens rea or the intention to kill another person. 19. From the evidence, there is absolutely no doubt about the death of the deceased. The body was identified by Andrew Rotich. He is a brother of the deceased. On 7th October 2011 he and Joeph Ngetich attended a postmortem examination at Nandi Hills Hospital. The autopsy was carried out by Dr. Ruto. From the injuries on the body of the deceased, I entertain no doubt that the death was unlawful. The postmortem report produced by PW10 states that the cause of death was a “severe penetrative abdominal/chest injury; and, deep neck cut wound (slit throat)”. 20. The only live question now is whether the accused, of malice aforethought, killed the deceased. From the evidence, it is clear that there was no eye witness. The entire case for the prosecution is built upon circumstantial evidence. 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.” 21. The evidence tending to implicate the accused was from three key witnesses: The first is PW2. He is the area Chief. He testified that the accused“Was involved in the murder of the deceased Jeremiah Koe. I was told that accused had been arrested – got this report from police” 22. There are a number of legal and evidential issues from that testimony. First, it amounted to hearsay. Secondly, during cross examination, the witness admitted that he did not have firsthand information about the murder. The Chief also confirmed that he had not received any formal complaints on the accused person. He also said that the other two suspects, Julius and Michael, were arrested and later released by the police. 23. The second witness who implicated the accused was PW3, Phillip Kipngetich. He is a neighbor to the accused. He testified that the wife of the accused, Nelly, told him that she heard that the accused was involved in the murder. That is classic hearsay. Nelly Cheptoo, the wife of the deceased) failed to take the stand. It also telling that PW3 was initially arrested by the police. 24. The third witness who pointed a finger at the accused was PW9, Inspector Samuel Mandila. Upon cross examination, he conceded that he got his information from PW3; and, that the latter was one of the people he had arrested in connection with the homicide. PW9 testified that a boy, Kimutai, overheard the wife of accused saying the accused killed the deceased. The boy was not called to the stand, notwithstanding that he had been bonded. Again, it is pure hearsay. 25. The other incriminating evidence is the conduct of the accused: he ran away when PW5, Police Constable Nderitu, and PW6, Sergeant Odede, tried to arrest him at Kibukwa Centre. The accused disappeared into a sugar cane plantation. He was arrested later at 5:50 p.m. by PW5 near Poto Poto Police Post.

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26. Finally, there is the evidence of PW4, Violet Vihenda. She and four other women were the victims of an elaborate scam by a man known as Vuji. She said Vuji was the same person as the accused. When she first complained to the police, it was in relation to the accused obtaining money by falsely pretending he could sell her and her friends green maize. She learnt of the murder from the police. The nexus is an allegation by PW9 that the deceased was following up on the complaint by PW4. 27. The accused flatly denied killing the deceased. He was of course not forthright. His shifty demeanor was quite telling. I did not buy his story. But the accused may have lied; he might have held some cards close to his chest; or, he might have concealed some vital information. There are lingering suspicions that he killed the deceased; or, had a hand in his death. But they remain just that. The entire case hangs on a very thin strand of circumstantial evidence. Unfortunately there is no compelling circumstantial evidence pointing irresistibly and exclusively to the culpability of the accused. See R v Kipkering arap Koske & another 16 EACA 135 (1949). 28. Quite apart from the denials by the accused, he is entitled under our Constitution; and, the Criminal Procedure Code to remain mute. See Republic v Henry Kiplimo, High Court, Eldoret, Criminal Case 43 of 2006 [2015] eKLR. In the end there are manifest gaps in the evidence that leave some doubt whether the accused is the one who perpetrated this heinous crime. I remain alive there were other suspects; some still at large. Our criminal justice system puts the burden of proof entirely upon the shoulders of the prosecution. Woolmington v DPP [1935] AC 462, Bhatt v Republic [1957] E.A. 332. 29. The evidence in this case has not reached the threshold of proof beyond any reasonable doubt. In short, there is no concrete evidence linking the accused to the murder. I would then not say that all the elements of the charge of murder have been laid out; or, at any rate that the accused killed the deceased with malice aforethought. The accused person is hereby acquitted. It is so ordered. DATED, SIGNED and DELIVERED at ELDORET this 16th day of March 2017. KANYI KIMONDO JUDGE Judgment read in open court in the presence ofAccused. Mr. Isiji for Ms. Chepkurui for the accused. Ms. R. Karanja for the Republic. Mr. J. Kemboi, Court clerk.

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