Republic v Jackson Kimeli Koech

9. PW3 Alice Chebet Too, recalled that on 5th March 2015 while alone at home Jackson Kimeli, James Tinderet, and John Kitur came to her home to take Busaa. They were a bit drunk. She heard Jackson demanding for Kshs.10/= from the deceased. A quarrel ensued. She told them she did not want quarrels in her home and told them leave. They left. She did not follow them but later heard what had happened. On cross examination she told the court that when they came to her place the accused and the deceased were drunk, that they were friends and her regular busaa customers, however that day they had left while quarreling. 10. PW4 Joseph Kiptanui Tinderet, told the court that the accused was his nephew. That the deceased was the son of his elder brother. He testified that on 5th March 2015 while going to the Posho Mill he met with John Kipsiele Mabwai who informed him that the deceased had been beaten by Jackson Kimeli. That he went where the deceased was and he found him crying while clutching his stomach. He rang PW1 who came and took the deceased to the hospital. The following day upon learning of the deceased’s condition he went to Jackson’s home to find out what happened and he met him and together they went to see the deceased. He saw that James was in serious condition. His father gave Kshs. 3,500/= for treatment and James was taken to Subukia Hospital, then to Nyahururu and later to Provincial General Hospital Nakuru where he died on 15th March 2015. He said that he later reported the incident at Subukia Police Station. Subsequently, on 18 th March, 2015 he attended the post mortem at Provincial General Hospital (PGH). 11. On cross examination he stated that the deceased and accused were friends and the family of the accused attempted reconciliation after the incident, when the accused’s family gave money for treatment. It was also discussed after the death that if an agreement was to be reached the family of the accused would pay nine (9) head of cattle. He confirmed that it was also agreed that the accused would leave his family for a while but did not know where he went. However, he also stated that when the accused heard that his friend had died he ran away. 12. In re-examination he confirmed that the accused left when the deceased was in the hospital but disappeared when he died. That the reconciliation collapsed because the leader of the accused’s family passed on. He clarified that there was no agreement that the accused would leave home. He had run away upon learning of the death of his friend. 13. PW5 John Kipsiele Kitur, testified that the deceased was a neighbor, an uncle and a friend to the deceased, and that the accused was his neighbour. On 5th March 2015 the deceased and one Koech were working together and were given some busaa to take after work. The deceased invited him to join them to drink the busaa. They were six in number. Before they finished the busaa they had been offered the deceased gave him Kshs. 50/= and asked for Kshs. 10/= contribution from him to buy chang’aa. Then he, the deceased and the accused left and went to the home of Jackson Too where the chang’aa was. He bought the chang’aa which he shared with the deceased. It was then the accused began to demand to know why he was not given a share of the chang’aa. The deceased told him it was because he, Kitur had contributed Kshs. 10/= towards the purchase of the chang’aa. It was then that the accused went out to drink with others but returned demanding to know why they had not bought him alcohol. A quarrel ensued over a Jembe. The quarrel persisted and the owner of the home Alice Too PW3 ordered them to leave. When they left the house, outside, the accused and deceased shook hands and shared a cigarette. They walked ahead of him. On the way he stopped to talk to another Mzee as deceased and accused proceeded with the journey. After a short while some school children came and informed him that the deceased was lying down injured. He rushed to where the deceased was and found him writhing in pain saying that the accused had stamped on his stomach (Jackson amenikanyanga kanyanga tumbo). He said on the way he met the accused who told him he wanted to fight him because he had refused to buy him alcohol. 14. He stated that the deceased sister came and took the deceased to the hospital and on 15 th March 2015 the deceased died while undergoing treatment at PGH Nakuru. He said he went to the deceased home, found both accused’s and deceased’s parents and in their presence the accused said that he had intended to hit him (Kitur) and not the deceased. He confirmed that accused’s parents paid for the deceased treatment. 15. On cross examination he testified that the deceased and the accused were friends and they had taken alcohol together on the fateful day before he joined them. That the deceased told him that he had been assaulted by the accused. He did not have any grudges. He also said that the parents of the accused and deceased attempted reconciliation. He was not aware whether the deceased had been involved in another accident. He confirmed he did not witness the incident leading to the deceased’s death. 16. PW6 No. 85658 PC George Karani stationed at Subukia DCI testified that he was the Arresting Officer. He learnt on the 10 th of June, 2018 that a suspect of murder committed in 2015 in Subukia had been arrested in Mau Narok. He and PC Ayugi were directed to collect the accused. They went, rearrested him and brought him to Subukia DCI where the case was handed over to Police Constable (PC) Maundu for investigations. 17. PW7 No. 111963 PC Felix Maundu, the Investigating Officer testified that on 6 th March 2015 at the DCI offices Subukia he received the assault report regarding the accused and the deceased. The report was made by one Joseph Tinderet that his brother’s son James Koech the deceased, had been assaulted by one Jackson Kimeli. Investigations commenced but the deceased died while undergoing treatment and the police began to look for the suspect. On 10 th June, 2018 the suspect was arrested by members of the Public at Mau Narok. On 11 th June 2018 Sargent (Sgt) Ayugi and PC Karani left Subukia Police station and went to Mau Narok and re-arrested the accused. On 12 th June 2018 he presented the accused to court where he was charged with murder. The witness added that he had witnessed the postmortem. 18. On cross examination he told the court that he did not have the P3 for the deceased because the deceased was still undergoing treatment. He said deceased was in hospital for ten (10) days before he passed on. He said he was not aware that the accused was paying the hospital bill or that the two families had agreed that the accused was to relocate. He also confirmed that the accused had intended to attack John Kipsiele Kitur but denied that the attack on the deceased was an accident, while confirming that the accused intended to hit someone else. 19. On re-examination he testified that he was satisfied that the accused had the intention to attack someone though not the deceased. 20. PW8 Dr. Titus Ngulungu a pathologist at PGH Nakuru, stated that on 18 th of March 2015 he conducted post mortem on the body of James Kipkemoi Koech at the request of Subukia Police Station. He told court that after examining the deceased’s body he noted externally he had no injuries. The body had cyanosis, abdomen was swollen full of air. Internally, abdominal wall was bruised, intestines were red and

page 2 of 7

inflamed, and that what caused the perforation came from inside the body. He formed the opinion that the death was caused by blunt force trauma to the abdomen and viscous perforation peritonitis coming from shock caused by the perforation. He produced the postmortem report as an exhibit. 21. At the close of the Prosecution case, this Court ruled that the accused person was found to have a case to answer and put on his defence. THE DEFENCE CASE 22. The accused person Jackson Kimeli Koech gave an unsworn statement of defence. He testified that that the deceased was son to his uncle. He said that on the fateful day he was working with the deceased from the morning until 1:00 p.m. after which they were paid in alcohol. They drank the busaa then went to Alice’s (PW3) place to take chang’aa. They became very drunk and very loud and PW3 ordered them to finish taking their alcohol and leave because she did not have the permit to sell the alcohol. She refused to sell to them. She ordered them to finish their drinks very fast (tuliambiwa tumimine) (that is to say gulp down) they did so. He testified that as a result of gulping down their chang’aa they were feeling the effects of that fast drinking as they walked home. That they became very drunk as they went home, that their foot path home is rough and they were falling down and helping each other up. It was the accused’s testimony that he could not tell whether he was the one who injured him or whether deceased was hurt by a tree stump or stone in one of the falls. 23. He stated that the following day he learnt the deceased had been injured through Joseph and two (2) others who went to his house to enquire how much alcohol they had taken with the deceased. He stated that he was also injured on his left leg and that he informed them that he could not recall how much alcohol they took. That he visited the deceased who also wondered how he sustained injuries as he asked him whether he knew. He said on their way home he had left the deceased who was very drunk and he proceeded to his home which was nearby. 24. That when he visited the deceased he noted he was unwell and was taken to Nyahururu Hospital for x-ray. He stated that deceased’s parents wanted to sell a cow to get money to take the deceased to the hospital. He had some money which he gave out, and even when he visited the deceased in hospital and found that some things had not been done for lack of money he gave out his money not because he was forced to but because he wanted the deceased to get well. He left when the deceased was at Nyahururu and he went to their shamba at Mau Narok. It was while he was there that his friend passed away and he was blamed for his death. He asked how he could be blamed for the death yet it was a case of drunkenness. He said Joseph Tinderet, an uncle to the deceased called him and advised him to stay at Mauche so that the family could discuss and find out the cause and determine the way forward. He stayed in Mauche but he could come home often. He disputed that he was in hiding. He testified that he was later arrested. 25. He said he did not quarrel with the deceased but with Joseph Kipsiele and that they were good friends with the deceased since childhood. SUBMISSIONS 26. Ms. Chemngetich appeared for the accused and Ms. Murunga for the state. They each made oral submissions. 27. It was submitted for the accused that none of the eight (8) prosecution witnesses witnessed the accused assault the deceased and all witnesses confirmed that both the deceased and the accused were friends and drunk alcohol together on the fateful day. 28. The defence submitted that PW5 confirmed that the accused and the deceased resolved their differences as they were leaving the drinking place, and PW4 confirmed the families of the accused and deceased resolved the issues and the accused even contributed to the medical bills of the deceased, and that was the same reason the accused left Subukia for Mau Narok to allow room for reconciliation. That PW7 confirmed accused did not intend to assault the deceased but someone else and there was no confrontation between the accused and the deceased. 29. The defence further submitted that the accused lacked the necessary ingredients of murder and if he intended to kill he would not have assisted in his treatment, further that the accused could not recollect attacking the deceased due to drunkenness. The court was urged to acquit the accused but if the court found otherwise, it could only be manslaughter. 30. Ms. Murunga for the state urged the court to find that the prosecution had proved its case beyond reasonable doubt. It was submitted that PW5 who was with the deceased confirmed that there was a misunderstanding between the accused and the deceased; that if such misunderstanding was resolved the accused person could not have disappeared after the incident leaving the deceased helpless. When PW5 went to seek for assistance the accused was nowhere to be seen. In fact accused disappeared immediately after the incident and was arrested three (3) years later. That he ran away because he knew he had murdered the deceased. 31. The prosecution argued that even without an eye witness circumstances point to guilt of the accused. 32. The prosecution submitted that assertion that the accused had the intention to injure some other person is immaterial since he still had the intention to cause grievous harm. Further that there was no evidence that the accused contributed to the deceased’s medical bills and that the injuries inflicted on the deceased by the accused caused his death. 33. In a rejoinder the state submitted that PW5 confirmed the dispute between the deceased and the accused but also confirmed they resolved it by shaking hands and sharing a cigarette. They reiterated their submissions and prayed that the accused should be acquitted under Section 215 of the Criminal Procedure Code. ANALYSIS AND FINDINGS 34. The key issue for determination is whether the prosecution has established the charge against the accused beyond a reasonable doubt.

page 3 of 7

35. Section 203 of the Penal Code defines murder as the unlawful homicide committed with “malice aforethought.” It is the killing of a human being by another with malice aforethought. The Section reads: “Any person who of malice aforethought causes death of another person by any unlawful act or omission is guilty of murder.” Malice aforethought is deemed to be established by evidence proving any one of the following circumstances provided for under Section 206 of the CPC (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 bodily harm is caused or not, or by a wish that it may not happen. (c) An intent to commit a felony (d) An intention by the act or omission to facilitate the flight or escape from custody or any person who has committed or attempted to commit a felony. 36. To prove murder, the prosecution is required to establish the following ingredients beyond a reasonable doubt. (a) The fact and cause of death of the deceased person. (b) That the death of the deceased was as a result of an unlawful act or omission on the part of the accused person. (c) That such unlawful act or omission was committed with malice aforethought. See Anthony Ndegwa Ngari vs Republic [2014] eKLR, where the elements of the offence of murder were listed as follows: (a) The death of the deceased occurred; (b) That the accused committed the unlawful act which caused the death of the deceased; and (c) That the accused had malice aforethought. (a) The death of the deceased 37. There is no doubt and or dispute that the deceased is dead. All prosecution witnesses testified and confirmed the same. 38. PW8 the pathologist who conducted the post mortem examination on the body of the deceased produced the postmortem report confirming that the deceased’s cause of death was as a result of blunt force trauma to the abdomen. (b) Whether the death was caused by the accused 38. There was no eye witness to the assault on the deceased by the accused. The evidence of that attack came from the deceased himself as he lay wreathing on the ground in pain after accused had kicked him in the abdomen. He told PW1, PW2 and PW5 testified that it was the accused who had assaulted him. 39. These statements turned out to be dying declarations as envisaged under Section 33(a) of the Evidence Act, which states: “When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question. Such statements are admissible whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.” 40. In Philip Nzaka Watu vs Republic [2016] eKLR, the Court stated the following on admission and reliance on a dying declaration: “Under section 33(a) of the Evidence Act, a dying declaration is admissible in evidence as an exception to the rule against admissibility of hearsay evidence. Under that provision, statements of admissible facts, oral or written, made by a person who is dead are admissible where the cause of his death is in question and those statements were made by him as to the cause of his death, or as to any of the circumstances of the transaction leading to his death. Such statements are admissible whether the person who made them was or was not expecting death when he made the statements. ….. While it is not the rule of law that a dying declaration must be corroborated to found a conviction, nevertheless, the trial court must proceed with caution and (sic) to

page 4 of 7

get the necessary assurance that a conviction founded on a death declaration is indeed safe.” 41. In considering the statements by the deceased to the various persons I find some illumination on the necessary caution in the holding in Aluta v Republic [1985] KLR 543 it was held at page 547 thus: “In every criminal trial a conviction can only be based on the weight of the actual evidence adduced and it is dangerous and inadvisable for a trial Judge to put forward a theory not canvassed in evidence or in counsels’ speeches. A trial judge should approach the evidence of a dying declaration with necessary circumspection. It is generally speaking very unsafe to base a conviction solely on the dying declaration of a deceased person made in the absence of an accused and not subject to crossexamination, unless there is satisfactory corroboration”. 42. In this case, the deceased was found lying on the road clutching his stomach in pain before he was taken for treatment at Subukia Hospital, Nyahururu Hospital and PGH Hospital Nakuru where he met his death. PW1, PW2 and PW5 all testified that they each talked to the deceased at the time when there was no indication at all that he had sustained a fatal injury. He stated simply that the accused had hit him in the abdomen. Both the accused and the deceased and witnesses were related, were neighbours and well known to one another. There was no subsisting grudge. The conduct of the two families, which is undisputed by the accused person was that this was an unfortunate assault, and the same would be resolved as soon as the victim came from hospital. His death changed things completely. It is evident that if had he lived the whole matter would have been settled at home. 43. All these factors lead to the certain conclusion that the accused is the person who assaulted the deceased causing him injuries that led to his death. In addition, there is circumstantial evidence to support this finding. In the case of Ahamad Abolfathi Mohammed and Another v Republic [2018] eKLR, the Court of Appeal stated: “However, it is altruism that the guilt of an accused person can be proved by either direct or circumstantial evidence. Circumstantial evidence is evidence, which enables a court to deduce a particular fact from circumstances or facts that have been proved. Such evidence can form as strong a basis for proving the guilt of an accused person just like direct evidence. Way back in 1928 Lord Heward, CJ, stated as follows on circumstantial evidence in R v. Taylor, Weaver & Donovan [1928] CR. App. R. 21: “It has been said that the evidence against applicant is circumstantial. So it is, but circumstantial evidence is very often the best. It is evidence of surrounding circumstances which, by undersigned coincidence is capable of proving a proposition with the accuracy of Mathematics. It is no derogation from evidence to say that is circumstantial.” 44. There is further guidance in the case of Abanga alias Onyango v R Cr. App. No 32 of 1990, the court set out the conditions as follows: “It is settled law that when a case rests entirely on circumstantial evidence, such evidence must satisfy three tests: (i) the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; (ii) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the Accused; (iii) 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.” 45. It is conceded by the defence that the accused and the deceased left the drinking place together and walked home together. The accused was the last person to be with the deceased. They had quarreled over alcohol earlier and though it is said they settled the quarrel it is the accused persons evidence that they were both very drunk and anything could have happened. The accused told PW5 that he had intended to hit him. It is noteworthy that the context is that the three (3) of them had been drinking together and quarreled over alcohol. 46. Evidently there are no other co-existing circumstances, which break the chain of the circumstantial evidence held together by the dying declaration. (c) Did the accused have malice aforethought? 47. Malice aforethought was defined in Nzuki vs Republic [1993] KLR 171 where the Court of Appeal held that before an act can be murder, it must be aimed at someone and in addition it must be an act committed with the following intentions, the test of which is always subjective to the person accused. i. Intention to cause death; ii. Intention to cause grievous bodily harm; iii. Where accused knows that there is a risk that death or grievous bodily harm will ensue from his acts and commits them without lawful excuse. 49. The accused raised a defence of intoxication when he testified that they had been drinking with the accused before the incident and on their way home he was unsure whether the deceased fell on a stone or stump and injured himself or whether he was the one who pushed him and as a result he sustained injuries. He stated that he had also injured himself; he went to see the deceased upon learning that he was injured and the deceased could not recall what happened to him. 50. Is this defence available to the accused? Section 13(2) of the Penal Code provides:

page 5 of 7

“13. Intoxication (1) Save as provided in this section, intoxication shall not constitute a defence to any criminal charge. (2) Intoxication shall be a defence to any criminal charge if by reason thereof the person charged at the time of the act or omission complained of did not know that such act or omission was wrong or did not know what he was doing and— (a) The state of intoxication was caused without his consent by the malicious or negligent act of another person; or (b) The person charged was by reason of intoxication insane, temporarily or otherwise, at the time of such act or omission. (3) Where the defence under subsection (2) is established, then in a case falling under paragraph (a) thereof the accused shall be discharged, and in a case falling under paragraph (b) the provisions of this Code and of the Criminal Procedure Code (Cap. 75) relating to insanity shall apply. (4) Intoxication shall be taken into account for the purpose of determining whether the person charged had formed any intention, specific or otherwise, in the absence of which he would not be guilty of the offence. (5) For the purpose of this section, “intoxication” includes a state produced by narcotics or drugs.” 51. In the instant case there is evidence from PW3 and PW5 that both accused and deceased had been drinking before the incident. There is however no evidence that the accused was so drunk that he did not know what he was doing within the meaning of section 13 of the Penal Code. The accused narrated before this court the chronological events of that day. He stated vividly that he was working with the deceased and they were paid with alcohol which they drank before leaving to PW3’s place to drink more. He remembered they quarreled with the deceased necessitating PW3 to order them to leave her place. He remembered that PW3 had told them to finish their alcohol quickly and leave. He was aware that the footpath on their way home was rough and that he was with the deceased. He could recall that both of them were so intoxicated they were falling down and getting up, and assisting each other. He could recall the point where they parted ways according to him, deceased told him he was very drunk and the accused left him on the roadside while he proceeded with the journey to his home which was nearby. 52. It is not clear why the accused could not remember whether the deceased fell on a stone or stump and injured himself or whether he pushed him, yet he could remember every other thing that happened. The fact that the deceased did not have any other injuries on the body externally is indicative that the alleged numerous falls never took place. There was no evidence that the accused suffered the injury he alleged to have sustained. There is consistent evidence that there was a quarrel between the accused and Kitur and the accused intended to hurt Kitur. From the evidence on record it is evident that the drink the accused had consumed had not impaired his judgment to the extent that it would amount to excusable intoxication or render him incapable of forming the specific intent essential to constitute malice aforethought. 53. The court in Kongoro alias Athumani s/o Mrisho vs R (1956) 23 EACA 532 was of the view that the fact that an accused copiously took various amounts of alcohol at different venues cannot excuse the commission of a criminal offence unless it gives rise to a mental incapacity within the terms of section 13 of The Penal Code. Merely drinking alcohol does not count in law otherwise many killers would get off by arming themselves with alcohol before they go on their murderous missions. 54. There is sufficient evidence that the accused and the deceased took copious amounts of alcohol and that they were drunk. However, it is not established that the degree of drunkenness was sufficient to amount to the defence of intoxication. 55. What is clear however is that the accused, while under the influence of alcohol hit his cousin and friend in the abdomen so hard that it caused a perforation in the stomach leading to his death. While the set of facts before me clearly indicate that his actions caused the death of the deceased, those set of facts do not show that he intended to kill him. 56. In Roba Galma Wario vs Republic [2015] eKLR where the court held that; “For the conviction of murder to be sustained, it is imperative to prove that the death of the deceased was caused by the appellant; and that he had the required malice aforethought. Without malice aforethought, the appellant would be guilty of manslaughter, as it would mean the death of the deceased during the brawl was not intentional.” 39. In this case I have come to the conclusion that the accused person while guilty of the act that led to the death of his the deceased who was also his he had no intention of killing him. 40. I come to the final holding that the accused is guilty of Manslaughter Contrary to Section 202 as read with 205 of the Penal Code. I find him so guilty and convict him accordingly. DATED AND DELIVERED VIRTUALLY THIS 5TH DAY OF NOVEMBER, 2021. MUMBUA T MATHEKA JUDGE

page 6 of 7

In the presence of; C/A Edna FOR STATE: MS. MURUNGA FOR ACCUSED: MS. CHENGÉTICH N/A ACCUSED: PRESENT VIRTUALLY

page 7 of 7