REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAROK CRIMINAL CASE NO. 19 OF 2017 REPUBLIC................................................................................................PROSECUTOR VERSUS TITITI OLE POTOT..................................................................................1 ST ACCUSED LEKISHON MOUWO...............................................................................2 ND ACCUSED (Formerly Naivasha High Court Criminal Case No. 1 of 2016, Republic v Tititi Ole Potot and Lekishon Mouwo) JUDGEMENT Introduction 1. The two accused are charged with murder contrary to section 203 as read with section 204 of Penal Code (Cap 63) Laws of Kenya. 2. Both accused pleaded not guilty. 3. The prosecution called five witnesses in support of the charge. 4. Both accused gave sworn evidence, but did not call any witnesses. The case for the prosecution 5. The prosecution called Oloningo Naiswaku (Pw 1). Pw 1 is a resident of Morijo. On 28/9/2015 he heard people talking while descending downhill towards the home of Ole Letuat. Those people were from Emorogi and they then surrounded the home Ole Letuat. 6. These Emorogi people were armed with spears, rungus and arrows. They began to throw rungus into the boma of Ole Letuat. Upon arrival there, the deceased urged the Emorogi people not to assault people. He then saw the 2 nd accused assault the deceased with a knife. 7. Furthermore, as the deceased was lying down, the 1 st accused assaulted the deceased in the head with a rungu. As Pw 1 was trying to lift the deceased, he was assaulted by Kamunke Ole Potot. Pw 1 then escaped and was taken to hospital. Parken (Pw 3) was also injured. 8. Pw 1 had known both accused for a long time and had never had a dispute with them. 9. Pariken Meyagie (Pw 3) is a resident of Morijo. On 28/9/2015 Pw 3 woke up. He then heard screams from the boma of Ole Letuati. Upon arrival in that boma, he found a group of people who were screaming war cries. These people were armed with rungus, spears, arrows and machetes. Pw 3 testified that they were fighting over grazing rights with the people from Emorogi people. 10. When Pw 3 arrived at the scene, he found the deceased standing at the gate of Ole Letuat. The 2 nd accused then hit the deceased on the head with a Maasai sword. As a result, the deceased fell down. As he was lying down, the first accused hit the deceased on the head with a rungu. PW 3 had known both accused for a long time. Pw 3 was also hit on the head by Saitabau Koin. Pw 3 then became unconscious and later he found himself at hospital.
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11. It was also the evidence of Pw 3 that the fighting between the Emorogi people and the people from Morijo took place at Ole Nkansasi area, which separates Emorogi and Morijo people. 12. The evidence of Katungai Kipai (Pw 4) supports that of Pw 1 and Pw 3. 13. Eric Kipai (Pw 2) identified the body of the deceased to the doctor who performed the postmortem on the body of the deceased. 14. Henry Kiboma (Pw 5) was the investigating officer. He able to arrest the accused after announcing that they wanted to take them to hospital including all those who were injured. Pw 5 initially arrested the 1 st accused with assaulting Katunga Kipai (Pw 4). The charge was withdrawn and the 1st accused charged with the murder of the deceased, after the death of the deceased. 15. Pw 5 explained that by the time they were charging 1 st accused with assault they did not have any information that he had injured the deceased. 16. The report of the postmortem was put in evidence as prosecution exhibit 2. The said report was prepared by Dr. Kamau and Prof. Rogena. According exhibit 2 there was a commuted fracture of the right parietal bone extending to the left temporal bone and there was also swelling of the head. The cause of death was due to head injury due to a blunt force trauma with a fractured skull. The case for the defence 17. Both accused had a common defence. It was their sworn evidence that the people of Morijo had blocked access to the river for their livestock. They therefore held a series of meetings to deliberate on how they were going to open it. It was also their evidence that on the material day, they went to open the fence or wall to enable their livestock have access to the river. Both denied assaulting the deceased. They testified that, if they had done so, the injuries on the head of the deceased would have been on his left side of the head, since both accused are right handed. Issues for determination. 18. I have considered the entire evidence of both the prosecution and the defence. I have also considered the submissions of Mr. Kamwaro for the accused. A result, I find the following to be issues for determination. 1) Whether it is both accused who inflicted the fatal injuries. 2) Whether the evidence discloses the offence of murder or manslaughter? Issue 1. 19. I find that the offence was committed during broad day light in the morning hours of 28/9/2015. The fighting was at Ole Nkansasi area, which separates the Emorogi from the Morijo people. There is evidence that this area has more grass than the neighbouring area, since the area is on a hill. The prosecution eye witnesses namely Oloningo Naiswaku (Pw 1), Parken Ole Meyagie (Pw 3) and Katunga Kipai (Pw 4) saw both accused assault the deceased. These witnesses had had no dispute with the accused persons. 20. The accused and the witnesses knew each other for a long time before this incident. 21. I find their evidence to be cogent, consistent and credible that the deceased was assaulted by the accused. The latter used their Maasai simi and rungu in assaulting the deceased. 22. I do not believe the bare denial of the offence charged, in view of the overwhelming prosecution evidence that the accused assaulted the deceased. 23. In the premises, I find that it is the accused who inflicted the fatal injuries on the deceased. Issue 2 24. I find on the evidence that the two clans namely the Emorogi and Morijo clans were fighting over grazing rights in the Ole Nkansasi area which separates Emorogi and Morijo clans. I find that it was the Morijo clan which had occupied the Ole Nkansasi area, from which they were evicted by the Government. 25. In the circumstances, I find that the evidence discloses manslaughter. 26. After considering the entire evidence both for the prosecution and the defence, I find that the prosecution has proved their case beyond reasonable doubt. 27. The upshot of the foregoing is that I find that both accused are guilty of manslaughter contrary to section 202 as read with section 205 of the Penal Code and I therefore convict them accordingly.
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Judgment signed, dated and delivered at Narok this 28 th day of October, 2020 in the presence of Ms. Torosi for the Republic and Mr. Tanyasis holding brief for Mr. Kamwaro for both accused. J. M. Bwonwong’a. JUDGE 28/10/2020
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