Republic v Gilbert Kibet Yegon & 1 other

6. PW6, David Abraham Keter’s testimony was that on 2nd October 2017 between 8 – 9:00p.m. He was in his house when his mother called him saying that there was a sick person in their home. He went there and found that it was Joseph Mutai. There were other neighbours. Joseph told him that he had been beaten by Kipchinga and Osama, people well known to him and to the David. This witness identified the two (2) accused persons as Kipchinga and Osama saying that those were their nicknames. 7. He said they took a motor vehicle, took. Joseph Mutai to Kuresoi Dispensary, then took him to Kuresoi Police Station where he booked his report to the effect that he had been assaulted by Kipchinga and Osama. They then went to the District Hospital where he was given an injection, and told to return the following day. They left for home, he alighted from the motor vehicle, they walked him to the house but he collapsed and died. It is then that villagers went to look for the two accused persons, took them to the village elders and later to the police. 8. David told the court that Joseph’s whole body was swollen when they took him to hospital. That nobody identified the two (2) accused as Kipchinga and Osama, and whey they were arrested he was not present. He said that those were the names the accused persons used at home. 9. PW3 Willion Korir Kipkurui a brother to Joseph Mutai said he was rang on 1st October 2017 by his uncle Bornes, at 11.05 p.m. telling him that Joseph Mutai was sick and they needed to take him to hospital. He reached home at 6.00 a.m. and learnt that two (2) young men had been arrested by Nyumba Kumi because they had assaulted his brother to death. He went and reported at Kuresoi Police Station and police came and picked 2 young men, and took the body to Kericho mortuary. 10. Before they left they went to the scene, he said it was in a maize plantation, where they also recovered a piece of wood and a “nati” (piece of wood with a big nut metal attached to one end). 11. PW8 Charles Kimutai Lang’at testified that on 1st October 2017 at 10:00 p.m. while sleeping in his house, he heard noise. He heard voices of Bernard and Gilbert because he had worked with them in Nakuru and Kuresoi, he could recognize their voices as they passed by the shamba he was watching over. He said they were beating a person. He went out and noise stopped. He said he knew the person who was being beaten. He knew because the accused persons went looking for Joseph Mutai the day after he heard the noises. He claimed he heard Joseph Mutai being chased that night. He however said he never saw any of the three of them, that night, because they were far from where he was sleeping. On 3rd October 2017 he heard Joseph Mutai had died. He went to see the body but could not identify the same as that of Joseph Mutai because according to him. The appearance had completely charged. 12. PW7 No. 236358 IP Nickson Kirut & No. 65754 PC Joakim Ndaya were both at Kuresoi Police Station at the material time. PW7 told the court that on 3rd October 2017, about 12.30 p.m. he received a phone call from the OCS that a person had died at Saino area having come from hospital the previous night. 13. PC Ndaya said he was in the crime office at about 1 p.m. when the OCS told him that there was a report of a killing at Saino farm. He informed Inspector Kitur and they took the police motor vehicle and the reportees and proceeded to the scene. 14. According to PC Ndaya, they were taken to where the deceased lay covered with blankets. He noticed that he had visible blunt force injuries on the face and head, bruises on the back, evidence of assault. 15. They found two (2) young men had been arrested by members of the public as the suspects. 16. They then visited where the fight had taken place in a maize shamba, whose crop already had maize heads. They conducted a search, in the compound at the shamba and found the “bolted nut” and a https://new.kenyalaw.org/akn/ke/judgment/kehc/2022/3229/eng@2022-07-01 2

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piece of wood which they believed to be the weapons used to commit the crime. They took the accused to police station and body to mortuary. 17. On 9th October 2017, he and family members attended post mortem. He produced the exhibit and identified the 1 as the suspect they re-arrested from members of the public. 18. On cross examination he told the court that he had no eye witness to the crime. He said by the time he was testifying the village elder who had arrested the two (2) was deceased. He claimed that the killing was out of anger, that the deceased, the two (2) accused were drinking when the deceased told Gilbert to go call his mother for him. That Gilbert became annoyed asking “how can a man send me to call my mother for him.” He claimed that it was PW1 who heard this conversation. He confirmed that scenes of crime personnel did not come and the exhibits were not subjected to forensic analysis. He also claimed that PW1, was a chang’aa seller, and that the incident happened from her house that after the exchange of words, Gilbert grabbed Joseph Mutai and took him outside where the fight took place. 19. With respect to the weapons, he said that they had no traces of blood as deceased died of intended bleeding and there was no bleeding. Referred to his statement, he said he had not recorded the alleged quarrel and attack on the deceased. 20. PW7 said the body of deceased lay near the house of his mother. He denied that the deceased had recorded a statement and confirmed that report was made by members of the public. 21. He claimed one of the two (2) accused was provoked by deceased who was his mother’s boyfriend when he sent him to call her for him. 22. PW5 was the pathologist, Dr. Wesley Rotich from Kericho County Referral Hospital. He testified the report he had was prepared by his colleague Dr. Patrick Kaberia who at the material time had left for Egypt for further studies. Defence had no objection to his producing the post mortem report. 23. He testified that the post mortem was conducted at the Kericho County Referral Hospital, on 9th October 2017, the body externally had bruise on frontal area of the scalp, both sides of the chest were filled with air (subcutaneous emphysema) and he had scrotal hematoma, blood inside the scrotum. Internally, fracture of the 3rd left rib, blood in chest cavity collapse of both lungs hematoma on the scalp, cause of death, tension hemothorax due to anterior chest wall trauma injury to chest, deceased unable to breath. Upon producing these witnesses the prosecution closed its case. 24. The issue for determination is whether the prosecution has established a prima facie case to warrant the accused persons being placed on the defence as per Section 306 of the Criminal Procedure Code. 25. The defence filed written submissions on 11th April 2022. There was no response by the ODPP. The defence put out eight (8) issues for determination; 1. Whether the ingredients of murder have been satisfied; 2. Whether the accused persons were positively identified; 3. Whether the weapon identified was used by the accused persons to beat the deceased; 4. Whether the post mortem report is reliable; 5. Whether the contradicting evidences produced by the prosecution witnesses jeopardizes its case; 6. Whether the failure by the prosecution to call crucial witnesses jeopardizes its case; 7. Whether the prosecution has proved its case beyond reasonable doubt; https://new.kenyalaw.org/akn/ke/judgment/kehc/2022/3229/eng@2022-07-01 3

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8. 26. Whether the evidence adduced by the prosecution is sufficient to put the accused persons on their defence. It is the duty of the prosecution to establish a prima facie case, upon which the accused person may put on the defence. That prima facie case will be established if on the face of the evidence, at least the ingredients of murder can be seen; i) That there was a death, in this case there is no doubt, because the post mortem established that the deceased Joseph Mutai died, the evidence of the prosecution witnesses and that of the pathologist confirm this. ii) Was death unlawful? From the evidence of the pathologist, it is evident that the deceased did not die of natural causes, he died out of injuries caused by blunt objects and which would have come from an attack by a mob. iii) Is there any connection between the death and the two (2) suspects? 27. Evidently, there was no eye witness to the murder. Each of the prosecution witnesses told the court, how they heard screams or voices, or from someone who did not testify that the accused persons were somehow connected to the death. Even PW1 who said he effected the arrest as the Nyumba Kumi could not explain why he had arrested them save that he was told by the brother of Denis that the accused persons were somehow involved. This brothers of Denis did not testify. Neither did the Wesley and Stephen who were sent out by PW2 to see what was happening where the screams were coming from. It is rather strange that the PW2 did not extract information from people she sent out herself as to what they had seen or heard, who they found fighting if at all, and whom they had separated from whom. It cannot be true that she heard these things, sent these people out and got absolutely zero information from them on what could have been happening out there. The failure by the prosecution, to call these alleged eye witnesses, brother to Denis, Stephen and Wesley, can only mean that their evidence could not have been in support of the case for prosecution see Bukenya vs Uganda. 28. There was an allegation that the deceased made a report at Kuresoi Police Station on the night of the assault. This was denied by PW7. PW6 claimed that the deceased named the people who hit him as Kipchinga and Osama. He claimed there were nicknames of the accused persons, however this evidence was not corroborated by any other evidence not that if the police or other witnesses that the accused persons were known by those names, not even PW1 who arrested them mentioned those names. 29. The police came up with a theory, that the 1st accused was provoked by the deceased when he sent him to call his mother for him. There was no evidence from the police as to where this information came from, it was not from PW1 or PW2 or PW3 or PW6, none of these witnesses mentioned anything to do with any provocation, attack by accused the first accused, neither was this crucial information in the police officers’ statements. This was such crucial evidence as it would have stablished a motive. However, coming from the police officers without the source of the same makes the evidence unreliable and inadmissible as against the two accused persons. The persons who were at the scene at the earliest, the Nyumba Kumi, the alleged brother to Denis or PW6, who says he saw the deceased before he died. 30. PW4, PC Ndaya claimed that the scene of crime was in a maize plantation, where he said he recovered the weapons, however he gave no evidence as to how the police identified the place in the maize plantation where they say the offence was committed. There was no connection between the alleged weapons and the accused persons. 31. From the foregoing analysis of the evidence, it is evident that other than establishing that Joseph Mutai died, that he died out of unnatural causes, there is no evidence to connect the two (2) accused persons https://new.kenyalaw.org/akn/ke/judgment/kehc/2022/3229/eng@2022-07-01 4

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before me with the death, the evidence before me is such that it would be unjust to place the accused persons on their defence. 32. In the circumstances I enter a finding of not guilty as per Section 306(2) of the Criminal Procedure Code, dismiss the charge and acquit the each of the accused persons accordingly. 33. Each is to be set at liberty unless otherwise legally held. DATED, SIGNED AND DELIVERED AT NAKURU VIRTUALLY THIS 1ST DAY OF JULY, 2022. MUMBUA T MATHEKA JUDGE In the presence of; CA Edna For state: Ms. Murunga For accused: Mr. Mong’eri Both Accused present https://new.kenyalaw.org/akn/ke/judgment/kehc/2022/3229/eng@2022-07-01 5

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