Republic v Collins Kipkirui Langat

found him testified that he had visible injuries and wounds. That the brother (PW4) to Julius Korir (now deceased) was called and he took him to hospital where he later succumbed to his injuries. 5. The Prosecution stated that a blue t-shirt branded Jasper High School was recovered in the Polaris 7 motor vehicle and it was presented for forensic analysis alongside the deceased’s blood sample. That the forensic analysis conducted by PW6 revealed that the blood stain on the recovered blue t shirt belonged to the deceased. 6. It was the Prosecution’s case that a Post Mortem Examination was conducted on the deceased by Dr. Peter Koech and the Report (Exhibit 6) indicated that the deceased died of a severe head injury secondary to assault. 7. The trial commenced on 2nd May 2019 with the Prosecution calling a total of 15 witnesses. The Defence Case. 8. At the close of the Prosecution’s case, the court found that the Accused had a case to answer and was placed on his defence. The Accused opted to give sworn testimony and he did not call any witness. 9. The Accused stated that he worked as a driver for KK security and that on 16th January 2019, he begun work at 6 a.m. driving the Motor Vehicle Polaris 7. That at around 2 a.m., he got a call from his supervisor, Aaron who requested for assistance at Field 46 where there were illegal tea pluckers. The Accused further stated that he arrived at Field 46 with Zephaniah Kandie, who was the crew. 10. The Accused stated that upon reaching Field 46, Zephaniah Kandie alighted from the car and went to look for the night guards who were on foot patrol. That shortly afterwards, his supervisor Siele arrived in another vehicle, Polaris 19 alongside the driver Jackson Korir, PW11 (Alfred Kipkoech Yegon) and PW13 (Duncan Simiyu Wanyama). It was the Accused’s testimony that Zephaniah came back and informed Siele and his crew that he had been handed the tea leaves and told by the night guards that the suspect had escaped. 11. The Accused testified that Siele and his crew took the recovered tea leaves in their Motor Vehicle Polaris 19 to the factory. That he continued his patrol until 6 a.m., when he handed over the vehicle to PW12 (Anderson Cheruiyot Ngetich) and did the handing over procedures. The Accused further stated that the suspect (Julius Korir) was not handed over to him and that the handing over procedures were not followed. 12. The Accused contended that during the handing over process between the two drivers, items that are recovered in the motor vehicle ought to be recorded in the handing over sheet. That at the time he handed over Polaris 7, there was no t-shirt in the vehicle. 13. The Accused stated that he did not kill the deceased and that he did not know him. That he only heard of his name in court. The Accused closed his case without calling any witnesses. 14. Both parties filed written submissions at the close of the Prosecution’s case. The Law 15. The offence of murder is provided for under Section 203 of the Penal Code as follows:Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder. 16. In Halsbury's Laws of England, ‘Criminal Law’, (Volume 25 (2020) at paras 1–552 and Volume 26 (2020), paras 553–1014), the elements of murder are outlined at paragraph 129, as follows:- https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/7413/eng@2024-06-20 2

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To establish a case of murder, the prosecution must prove: 17. 18. i. That the unlawful death of the victim was caused by an act or omission of the defendant. ii. That the defendant did that act or omitted to act with malice aforethought, express or implied. In the case of Johnson Njue Peter vs. Republic (2015) eKLR, the Court of Appeal of Kenya listed the three elements that must be proven to sustain a charge of murder as follows:i. The death of the deceased and the cause of that death. ii. That the accused committed the unlawful act which caused the death of the deceased. iii. That the accused had the malice aforethought. For the offence of murder to be proven, like any criminal offence, the onerous task of proof falls on the Prosecution. In the oft-cited case of Woolmington vs. DPP (1935) AC 462, 25 Cr App Rep 72, HL, Viscount Sankey L.C held thus:“ Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception…No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.’’ 19. I concur with Mrima J. in JOO vs. Republic (2015) eKLR where he held that:“ It is not lost to this Court that the offence which the Appellant faced was such a serious one and ought to be denounced in the strongest terms possible. However, it also remains a cardinal duty on the prosecution to ensure that adequate evidence is adduced against a suspect so as to uphold any conviction. The standard of proof required in criminal cases is well settled; proof beyond any reasonable doubt hence this case cannot be an exception. This Court holds the view that it is better to acquit ten guilty persons than to convict one innocent person.” 20. Having set out the law, I now proceed to analyse the evidence in respect of each of the elements of the offence. i. The Death of the deceased 21. Jonathan Kiprotich Kirui (PW1), Raymond Kirui Kipyegon (PW2) and Paul Langat (PW3) testified that they found the deceased on the morning of 16th January 2019 laying on the ground along a path in the farm. They then decided to call his brother, David Cheruiyot Korir (PW4) who testified that he found his brother unable to walk. That he had a jacket but no t-shirt on. 22. PW4 testified that he took the deceased to Kapkatet hospital where he later on succumbed to his injuries. 23. Dr. Kagili Richard (PW15) produced a Post Mortem Report on behalf of Dr. Peter Koech who conducted the Post Mortem on the deceased. The same was marked as P. Exh.6. PW15 testified that the deceased’s body had numerous bruises over the chest, both thighs, linear cut on both buttocks, swelling on the left ear, bleeding from the nose and a clot in the right ventricle. The Report indicated that the cause of death was a head injury secondary to assault. https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/7413/eng@2024-06-20 3

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24. When PW15 was cross examined, he stated that a fall was unlikely to cause the injuries the deceased sustained. That the injuries were consistent with assault. 25. From the above evidence, it was clear that the deceased died on 16th January 2019 and the cause of death was a head injury secondary to assault. It is my finding therefore, that the Prosecution proved both the death and the cause thereof to the required legal standard. The death was evidently unlawful. ii. Whether the Accused committed the unlawful act which caused the death of the deceased. 26. From the evidence on record, no one witnessed the murder of the deceased, thus there was no direct evidence. The Prosecution has presented circumstantial evidence in a bid to prove its case against the Accused. 27. Circumstantial Evidence entails that evidence which is deduced or inferred from a set of facts. It is openly distinct from direct evidence in that, whereas direct evidence draws from credible testimonies which result in creating some sort of belief, circumstantial evidence on the other hand entails a process of inference and deduction. This was the principle outlined in William Willis, ‘An Essay on the Principles of Circumstantial Evidence’, (Attorney at Law, London 1838), 171 Philadelphia, T. & J.W. Johnson, 1853) where it was stated thus: “ Every other possible supposition by which the facts may be explained consistently with the hypothesis of innocence must be rigorously examined and successively eliminated; and only when no other supposition will reasonably account for all the conditions of the case, can the conclusion of guilt be legitimately adopted.” 28. Similarly in R v Kipkering Arap Koske & Another [1949] 16 EACA 135, it was held that: “ In order to justify circumstantial evidence, the inference of guilt, and the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt.” 29. More recently, in the case of Ahamad Abolfathi Mohammed and Another v Republic [2018] eKLR, the Court of Appeal held: “ However, it is a truism 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 a strong basis for proving the guilt of an Accused person just as direct evidence. Way back in 1928 Lord Heward, C.J. stated as follows on circumstantial evidence in R. v Taylor, Weaver and Donovan [1928] Cr. App. R 21: ‘It has been said that the evidence against the Applicant is circumstantial. So it is, but circumstantial evidence is very often the best evidence. It is evidence of surrounding circumstances which, by intensified examination is capable of proving a proposition with the accuracy of mathematics. It is no derogation from evidence to say that it is circumstantial.” 30. Turning to the evidence on record, Philip Chepkwony (PW7) and Richard Rono (PW8) who were the night security guards testified that as they patrolled Farm 45 and Farm 46, they found the deceased illegally plucking tea leaves. That they arrested him and called their supervisor https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/7413/eng@2024-06-20 4

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Kenneth Kiprono Langat (PW10) to inform him of the development. PW10 corroborated this evidence and further stated that he called the KK security supervisor called Siele to assist in transporting the suspect (now deceased) to the police station. 31. It was an uncontested fact that a motor vehicle referred to as Polaris 7 arrived at Farm 46 and that the vehicle was being driven by the Accused accompanied by one Zephaniah Kandie, who was part of the KK security team and the suspect at large. PW7 and PW8 testified that they handed over the deceased who was in good health to the Accused and Zephaniah Kandie. 32. In his defence, the Accused stated that upon arriving at Farm 46, he did not alight from the motor vehicle as the rules did not allow him to. That only Zephaniah Kandie alighted and went to the security guards (PW7 and PW8). He further stated that Zephaniah Kandie returned with the recovered tea leaves and told him that he had been told by the security guards that the suspect had escaped. 33. In their submissions, the Prosecution submitted that the evidence tendered by its witnesses was overwhelmingly against the Accused. That the circumstantial evidence pointed to the guilt of the Accused, his accomplice and none-other. They further submitted that when the deceased was arrested by PW7 and PW8, he was in good health and he was handed over to the Accused and Zephaniah Kandie who placed him in the motor vehicle driven by the Accused. 34. It was the Prosecution’s submission that the deceased was thereafter discovered while badly injured and that he later succumbed to his injuries. That the deceased’s blood stained t-shirt was discovered in the aforementioned motor vehicle. It was their further submission that the Accused and Zephaniah Kandie lied that the deceased had escaped and that Zephaniah Kandie vanished afterwards which would make one presume him guilty of the offence. 35. The Prosecution submitted that the Accused and Zephaniah Kandie were the last people to be seen with the deceased. They urged the court to presume as provided by Section 119 of the Evidence Act that the two could only have killed the deceased. 36. In his submissions dated 20th March 2023, the Accused submitted that there was a possibility that the deceased was not the one who stole the tea leaves. That PW7 and PW8 did not prove that they handed over the deceased to him and Zephania Kandie. He further submitted that such evidence could have helped ascertain the name of the deceased and his national identity card number. 37. It was the Accused’s submission that PW11 and PW13 informed the court that Zephaniah Kandie had informed them that the deceased had run away. That a person who ran away could not be dead. 38. The Accused submitted that none of the witnesses testified that they saw him assaulting the deceased. He wondered why he would assault someone that he did not apprehend. He further submitted that the deceased could have been attacked by other people other than the Unilever people and KK security officers when he tried to escape. 39. It was the Accused’s submission that PW12 stated upon cross examination that he noticed the blue t-shirt in the Polaris 7 a few minutes after 7 a.m. as he added pressure to the tyres. That the distance between Itare and Kimari factory was about 4 kilometres and that the handing over was done at 6 a.m. and that in one hour, a lot could have happened as the Polaris 7 was still being used within the company. He contended that there was no evidence of the blue t-shirt in the Polaris 7 when he handed it over at 6 a.m. https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/7413/eng@2024-06-20 5

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40. The Accused submitted that in the event of an operation, the rules required him to stay in the motor vehicle. That he did not alight from the motor vehicle and he never met the guards who manned Fields 45 and 46. He submitted that it was only Zephaniah Kandie who alighted and went to the guards. 41. It was the Accused’s submission that the Prosecution did not avail the handing over sheet of the motor vehicle Polaris 7 and the gate inventory documents which contained the contents of a motor vehicle entering the factory. 42. The Accused submitted that there was a procedure for handing over suspects. That there were pocket books that were to be signed by the handing over and receiving teams. He further submitted that the Prosecution did not prove the handing over beyond reasonable doubt. 43. The issue which the court must determine is whether the prosecution proved that the deceased was in the Accused’s custody and what happened to him thereafter. The night guards (PW7 and PW8) both testified that they handed over the deceased to the Accused and Zephaniah Kandie. When PW7 and PW8 were cross examined, they confirmed that they handed over the suspect (now deceased) to him and Zephaniah Kandie. 44. When PW7 was cross examined, he confirmed that the Accused alighted from the vehicle Polaris 7 and together with Zephaniah Kandie, they were handed over the suspect. It is therefore my finding that the Accused’s defence that he did not alight from the motor vehicle (Polaris 7) was an afterthought the evidence that they took custody of the suspect is credible. 45. Jonathan Kiprotich Kirui (PW1), Raymond Kirui Kipyegon (PW2) and Paul Langat (PW3) all testified that they found the deceased lying on a path along the farm on the morning of 16th January 2019. That he was injured but still alive. They all confirmed that the deceased was wearing a jacket. They then called his brother, David Cheruiyot Korir (PW4) so that he could assist the deceased and take him to hospital. PW4 testified that when he found the deceased, he had a jacket but had no t-shirt on. 46. No. 82137 P.C Titus Kitonga (PW14) who was the investigating officer testified that on the following day (17th January 2019) he went to Kimau Factory yard in the company of police officers and PW4 to look for the motor vehicle Polaris 7. That they did a search on the motor vehicle and recovered a blue t-shirt branded Jasper High School. It was his testimony that PW4 positively identified the t-shirt and confirmed that it was the t-shirt the deceased was last seen wearing before he met his death. The blue t-shirt was produced as an exhibit and marked as P.Exh 5. 47. PW14 stated that he prepared an exhibit memo with the sample blood of the deceased and the blue t-shirt of the deceased and took them to Kisumu Government Laboratory for forensic analysis. 48. Richard Kimutai Langat (PW6) testified that he was a Government Analyst who worked in Kisumu. He testified on behalf of his colleague Polycarp Lutta Kweyu who conducted the forensic examination. He testified that an analysis was done on the DNA profiles generated from the deceased’s blood sample and that the generated blood stain on the light blue t-shirt branded Japer High School 2004-2005. That according to the Report of the Government Analyst, the DNA profiles generated from the blood stains on the t-shirt(item B) matched the DNA profile of Julius Korir (deceased). PW6 produced the Report of the Government Analyst and the Exhibit Memo as P. Exh 2(a) and 2(b) respectively. https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/7413/eng@2024-06-20 6

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49. From the above expert evidence, it ws clear to this court that the blue t-shirt belonged to the deceased by virtue of the DNA samples matching. 50. No. 82137 P.C Titus Kitonga (PW14) produced photographs of Polaris 7 which were marked as P.Exh 1(a)-(d) which showed the motor vehicle, a blue t-shirt, scattered tea leaves and crude weapons. Anderson Cheruiyot Ngetich (PW12) who took over the vehicle from the Accused confirmed the presence of the recovered tea leaves in the vehicle. PW14 also produced the Log in and Log out covered book that was marked as P.Exh 3. The record shows that there was no movement of Polaris 7 after it had been handed over to PW12. There was only a record of the starting mileage and no record of the closing mileage. PW14 also produced the Vehicle Work Ticket marked as P.Exh 4(b) which showed that Polaris 7 remained with PW12 until the following day (17th January 2019) when it was handed over the police for investigations. 51. The Accused stated that when he handed over the motor vehicle, it had no t-shirt in it and that any recovered items were recorded in the handing over sheet. That the handing over sheet was not presented in court. This is not true as the Investigating Officer (PW14) produced the Vehicle Handing Over Sheet and the same was produced as P.Exh 4(a). It showed that the vehicle was handed over to Anderson Cheruiyot (PW12) by the Accused and both parties signed the sheet. 52. I have gone through the hand over sheet and I have noted that the sheet provided for an odometer entry and a checklist for items present in the motor vehicle. The purpose of the Hand Over Sheet was to ensure that the motor vehicle was handed over in a good condition to the next driver with all its accessories intact. It did not provide for entry of recovered items or any other item in the motor vehicle. 53. I have considered the Accused’s defence that proper handing over procedures were not followed. The Accused stated that pocket books that would show handing over of the deceased were not produced as evidence and the gate records that would indicate the movement of the motor vehicles in and out of the factory were not availed either. 54. In analysing this evidence against the Prosecution evidence, I am hard pressed to find value in the Accused’s defence. From the evidence, the deceased’s blood stained t-shirt was found in Polaris 7 that was being driven by the Accused on the material night. Furthermore, the presence of tea leaves in the same vehicle indicated that they were part of the stolen tea recovered loot from the deceased. 55. It has been clear through the evidence that the Accused was with Zephaniah Kandie on the material night and they were placed in Farm 46 by PW7, PW8 and PW11, therefore the identity of the Accused was not in doubt. The Accused also admitted that he drove alongside Zephaniah Kandie to Farm 46 where they were to meet and assist PW7 and PW8 apprehend and escort the suspect (now deceased) to the security office. 56. Zephaniah Kandie vanished soon after the incident and has not been traced to date. This action does not portray the actions of an innocent man. PW7 and PW8 testified that they handed over the deceased to the Accused and Zephaniah Kandie, as such they were the last people seen with him. The evidentiary burden shifted to the Accused to explain as the last person seen with https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/7413/eng@2024-06-20 7

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the deceased how he met his death. He did not. I am persuaded by Odunga J. (as he then was) in the case of Republic v Robert Zippor Nzilu [2020] eKLR, the court held that:“ Regarding the doctrine of “last seen with deceased” I will quote from a Nigerian Court case of Moses Jua v The State [2007] LPELR-CA/IL/42/2006. That court, while considering the ‘last seen alive with’ doctrine held: "Even though the onus of proof in criminal cases always rests squarely on the prosecution at all times, the last seen theory in the prosecution of murder or culpable homicide cases is that where the deceased was last seen with the accused, there is a duty placed on the accused to give an explanation relating to how the deceased met his or her death. In the absence of any explanation, the court is justified in drawing the inference that the accused killed the deceased.” 57. It is my finding that the circumstantial evidence against the Accused is overwhelming and cogent. The circumstantial evidence in totality leaves no doubt that Accused and one Zephaniah Kandie, the suspect at large injured the deceased leading to his death. There was evidence that the deceased was in good condition when he was handed over to the Accused and the said Kandie and some hours later he was found severely injured. He succumbed to the injuries. 58. In Abanga alias Onyango v Republic Criminal Appeal CR. APP. No 32 of 1990, the Court of Appeal held thus in respect of a conviction resting on circumstantial evidence: “ 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 and erringly 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.” 59. In this case I have evaluated the evidence and come to the conclusion that the circumstances unerringly point to the guilt of the Accused. As already shown in the analysis above, the prosecution established the fact that the deceased was arrested and handed over to the Accused in good condition. It was also established that the motor vehicle Polaris 7 in which the deceased was placed upon arrest was driven by the Accused. The deceased’s blood stained shirt was thereafter recovered from the said motor vehicle which all the while was under the control of the Accused until he handed over to the next driver. It was also an established fact that the Accused was with one Kandie when they took custody of the deceased. 60. It is my finding that the deceased suffered fatal injuries in the hands of the Accused. It is also clear that the Accused may have acted with others not before court. https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/7413/eng@2024-06-20 8

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iii. Whether the Accused had malice aforethought. 61. Having found that the Accused caused the unlawful death of the deceased the next issue is whether he acted with malice aforethought. 62. Section 206 of the Penal Code of Kenya sets out the circumstances which constitute malice aforethought. It states thus:Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances— 63. 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 be caused; c. an intent to commit a felony; d. an intention by the act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony.” In the classic case of Tubere s/o Ochen v Republic E.A. [1945] 12 EACA 63, the Court of Appeal of Eastern Africa stated as follows:“ The duty of the court in determining whether malice aforethought has been established is to consider the nature of the weapon used, the manner in which it is used, the part of the body injured, the conduct of the accused before, during and after the attack.” 64. In their submissions dated 18th October 2022, the Prosecution submitted that there was no contention that the deceased was dead. That the body of the deceased was identified by PW4. The Prosecution further submitted that according to the Post Mortem Report, the deceased’s body had multiple injuries, the most significant one being the skull fracture. That the cause of death was ascertained to be a severe head injury secondary to assault. 65. The Prosecution submitted that by inflicting the head injury, it could be surmised that the Accused intended to kill the deceased or cause him grievous harm. That after assaulting the deceased, the Accused and Zephaniah Kandie left him lying in the cold without according him any assistance. They further submitted that the Accused and his accomplice concealed the whereabouts of the deceased thereby denying him any form of help. 66. It was the Prosecution’s submission that the Accused and Zephaniah Kandie assaulted the deceased as a form of punishment for the theft thereby taking the law into their hands. 67. On the other hand, the Accused submitted that there was no evidence presented that proved malice aforethought. That the duty of proving the case fell on the Prosecution and not on him to prove his innocence. 68. I have evaluated the prosecution evidence on the ingredient of mensrea. The evidence shows that the Accused was asked to respond to a report of tea leaf theft that he proceeded as the driver of the KK Security back up Polaris 7 to the scene where PW7 and PW8 had arrested the suspected thief. They handed him over to the Accused and one Kandie. There is no evidence that the Accused had a pre- https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/7413/eng@2024-06-20 9

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medidated plan to kill a suspected tea leaf thief. What is clear is that he died in his hands and there was evidence of assault. The totality of the evidence do not prove beyond reasonable doubt the ingredient of mensrea. In the circumstances, I must resolve the doubt in favour of the Accused as the law demands. I apply the provisions of Section 179 (2) of the Criminal Procedure Code and substitute the charge of murder with the lesser offence of manslaughter contrary to Section 202 as read with Section 205 of the Penal Code. 69. This judgment would not be complete without considering the glaring omission of the State to present one Zephaniah Kandie to face trial alongside the Accused in this case. It was clear through the evidence presented that they were the last people seen with the deceased. Philip Chepkwony (PW7) and Richard Rono (PW8) testified that after they arrested the suspect (now deceased), they handed him over to the Accused and Zephaniah Kandie. The Accused in his testimony stated that on the material night, he was with Zephaniah Kandie in the motor vehicle (Polaris 7) and that he was the one who went to PW7 and PW8 to secure and detain the deceased. 70. Justice demands that the said suspect at large, Zephaniah Kandie be traced, arrested and charged. To this end, I direct the Deputy Registrar of the Court to certify this Judgment to the Director of Public Prosecutions and the investigators for action. 71. In the end, I find the Accused Collins Kipkirui Langat guilty of the offence of manslaughter contrary to Section 202 as read with section 205 of the Penal Code. He is accordingly convicted. 72. Orders accordingly. JUDGMENT DELIVERED, DATED AND SIGNED THIS 20TH DAY OF JUNE, 2024. ........................ R. LAGAT-KORIR JUDGE Judgement delivered in the presence of the Accused, Mr Njeru for the state, Ms. Chirchir holding brief for Mr. Kenduiwo for the accused and Siele(Court Assistant). https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/7413/eng@2024-06-20 10

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