Republic v Mark Kipyego Kandie

4. Pw1 further stated that she took her 3-month-old child and went to wake her mother then they went towards the road where they saw blood and after crossing a river, they found her husband who appeared seriously beaten, lying on his back and could not speak; she said they arrived there at about 3: 00 a.m and her husband died the following day at 4 p.m. The body was taken by police on the 21st March,2023 and postmortem done by Doctor Keitany on the 8th August, 2020. Postmortem report was produced in court by consent and marked as Exhibit 1. 5. PW2 Agnes Jemutai the area Assistant Chief testified that on the 21st July, 2020, she was at home when village elder Joseph Cheptoo called to inform her that thieves who usually troubled them had been arrested and were at Koiboware centre. She said the elder informed her that he had called area Chief Joseph Chemitei but he was busy. She went to the centre and found many people waiting and she saw pieces of whips which she suspected had been used to beat the suspects. She said she was informed that the thieves were at the back of the centre and they were four in number being Evans Keitany, Cheboi Kipsingang, Isaac Cheboi and Kipcheboi Josiah. 6. She confirmed that the suspects were known to her as they were from her area. She said they were tied and one was lying down asking to be taken to hospital. She said the deceased herein Isaac who was bleeding said they had gone to drink and they were going to confess since she had arrived. she said the deceased said they had gone to kill and carry a goat from the accused Mark Kandie and the goat was at the scene. Pw2 identified the photo of the brown goat in court. She said she called OCS Loruk and at 12:00 noon, the four suspects were all still alive. 7. Pw2 said she asked members of public to take the 4 suspects to hospital but they said they wanted to be told where the other goats were. She left and after a short while, she was informed that the situation had turned bad. She went back and found the deceased Isaac had been left alone. she said the deceased’s wife was screaming saying Mark had killed her husband. She confirmed that the goat at the scene was for the accused Mark Kandie. 8. PW3 Isaiah Kiptoo a village elder testified that on the 21st July,2020, he received a call from Samson Silbet at around 2.30 a.m informing him that goat thieves had been found. He said goats stolen were for the accused Mark Kandie who is from his area. The following morning, he went to the shopping centre and found four people the deceased Isaac Chelal, Cheboi, Kipcheboi and Evans surrounded by members of public. 9. He said on enquiring what the 4 had done, the deceased Isaac said they got someone’s goat and pressed it until it died and asked for forgiveness asking from the people who were there. He said the deceased had injuries and Cheboi was also injured but deceased had more serious injuries. He asked the watchmen how the 4 people reached there and he was told they were taken there by members of public and after talking to the deceased Isaac, he left. He said at round 7p.m. he learnt that Isaac had died. He said there was a dead goat near the scene. 10. PW4 Evans Kemboi testified that on 20th July,2020 at 9 a.m, he went home where busaa was sold at Serutunin and stayed there for 2 to 3 hours then went to another homestead where busaa was sold and met the deceased Isaac Chelal, Eric and Bonface Cheboi. He said he bought for them Busaa then informed them that he was going home and went to a 3rd homestead of Kwarkwar at Kabarsety at 6p.m and they drunk together upto at 7:00 p.m when he entered a shop near Ezekiel’s home to buy KDF cake and sweet while Erick Cheboi bought salt and flour. 11. He said he heard the deceased Isaac telling Bonface and Eric that he wanted to take meat home and then they entered a forest and after a short while, they emerged with a dead goat. They walked together and, on the way, they found two women Catherine and mama Segutin who started screaming saying https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/14713/eng@2024-11-21 2

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Loroki which is the deceased’s nickname in the village and they run to different directions. He said he went home leaving the goat on the road and upon reaching home, he ate and slept. 12. He further stated that at midnight, he heard someone knock the door and the accused Mark Kandie entered with 4 people and got hold of him.pw4’s brother who was with him inquired what was wrong but accused held him and said they should go. He said that the accused slapped and tied his hand with a rope while in the house. He further stated that he found Bonface and Eric Cheboi in the river also tied like him. 13. He testified that they went to Kaiboware centre with Bonface and Eric who had been tied and on reaching Kaiboware centre, they were tied to house posts belonging to Michael Lotara and the accused said they should go and look for the other person. He said Festus and Albert were guarding to prevent them from escaping as the accused and others went to deceased Isaac and at 1:00 a.m., they heard screams and after about 10 minutes the people who had gone to look for the deceased Isaac arrived among them Victor Kemei and the accused. 14. He testified that the accused went and returned after 2 minutes and the deceased who was bleeding from the head was also tied. They were then untied and taken to police station where they were beaten by accused, Victor Kemei, Albert and 2 sons of accused Bobi and Gilbert. He said the accused Mark had a whip and the others had wooden whips and they beat them up as they stepped on them. He said he was beaten for about 2 hours and that there were torches. He said accused was among those who had torches which they used to identify the people beating them. He said they asked for forgiveness but the people beating them could not listen. 15. Pw4 further stated that his brother Ismael went to wake his mother who went to wake his uncle Richard Kiptoo and pw4’s uncle arrived at 3:00 a.m., and found them in a very bad state and after beating them badly, the people started leaving one by one and those who did not beat them up remained including one Mark Cheptumo and Festus stayed upto 6:00 a.m. He said they stayed there up to 5 p.m when the Assistant Chief Keitany arrived and inquired from them what they did. 16. He said the deceased asked to be taken to Hospital but they were not taken until the deceased died at around 7 p.m. He said the deceased laid down complaining about his stomach from 3 p.m. and that the Chief called police from Loruk after Isaac died; he said the deceased asked for forgiveness before he died many times even promising to compensate the accused with 4 goats. 17. PW5 Richard Cheptoo a pastor from Koiboware village testified that on 21st July,2020 at night, he was at his home when he heard screams at around 2 to 4 a.m then he saw torches at the centre and went to check and found people crying. He said on reaching the centre he saw Evans Kemboi being beaten while lying down crying and screaming and he also saw Evans Kipcheboi, Cheboi and the deceased Isaac. 18. He testified that Evans, Isaac Kipchumba and Kipcheboi were tied and there were many people at the centre. He said he saw Evans being beaten but he could not identify who beat him. He said the four people tied had been beaten and were injured. He said the deceased herein was bleeding from the head and when he screamed, people ran away. He said he remained alone with the 4 who had been tied. He said Josphat had not been tied and he ran away. He said he inquired from Evans what he had done and he said he had gone to steal accused’s goat and requested him (Pw5) to go and ask the accused Mark for forgiveness on his behalf. Pw5 said he inquired from him where the accused Mark was and he said he had not seen Mark and after 20 to 30 minutes accused arrived at around 3 a.m. 19. He said he greeted mark who was his neighbor and asked him to forgive Evans but accused told him he was grateful to God and that he had lost 8 goats and the one stolen that day was the 9th one and https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/14713/eng@2024-11-21 3

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he would let the law take its course. He said the accused went to charge his phone and returned at 4 a.m. and requested accused to assist take the suspects to a veranda as it was cold. He said at 5 to 6 a.m., many people including Evans’s mother, Kipchumba, Isaac’s brother in-law, Isaac’s mother in-law, Isaac’s wife, village elder Isaiah Cheptoo and many other people arrived and by 7a,m people there were over 20/30.He added that the 4 suspects were tied to verandah of the hotel and when the owner of the hotel arrived, they were given tea but the deceased herein refused to take tea as he was in pain. 20. He further said village elder asked accused to forgive the suspect but he declined and said he wanted the matter to go to court; and the Assistant Agnes Kaitany arrived at around 9:30/10:00a.m and had a talk with the people tied. He said they stepped aside to talk and called the suspects one by one and when they reached Isaac, they were informed that he had died. He said one of them checked on the deceased and screamed and when he screamed, all the other people run away. He confirmed that the body was taken by police from Loruk. He said he did not know who beat the 4 suspects. He said he saw one person beat Evans with a stick but he did not identify the person and confirmed that there were many sticks there. 21. PW 6 Wiliam Yatich Lokobwa testified that on the 8th August,2020 he accompanied officer from DCI Paul Kipchumba and Desmond Yatich to Kabarnet mortuary to identify the deceased Isaac Chelal who was his brother’s son to the doctor for post mortem examination. He said he saw bruises on both hands, legs and back and a cracked skull. 22. PW7 Linet Chematia Kibet testified that the deceased was her step-father. She said on the 20th July,2020 at around 8 p.m a person who had a rungu, a knife and something else arrived at their home and tied her step-father’s hand. She said the people who arrived were 5 in number and that she saw them through an opening between the roof and the wall. She however said she did not identify the person who took his step-father as it was the first time seeing him and she did not see his face properly. She said the accused looked like the person who had white shirt and a black trouser and she is sure he is the one. 23. PW 8 No.69029 CPL Benard Basirigwo an officer attached to DCI Baringo North testified that he investigated this matter and on the 26th July,2020, he received a complaint from a member of public that one of their kin had been beaten to death on 20th July,2020 and the matter had been reported to Loruk police station and no action had been taken. He met the person who gave information and then proceeded to Marigat where he met some of the witnesses among them the wife of the deceased and stepdaughter who was in Grade 3. He recorded their statements and together with DCIO they proceeded to Loruk police station where they confirmed that a case of mob justice had been reported and they also found statements of the complainant who had alleged his goat had been stolen. He said the officer who had visited the scene earlier furnished them with 2 photos of the deceased and that of a brown goat. The body had been taken to kabarnet Hospital. He visited the scene almost 10 days after the incident. 24. He stated that they interviewed members of the public among them Catherine who is now deceased at the scene. He testified that Catherine informed them that she was at her home in the neighboring village where the suspect has some livestock and in company of one Irene, they went to search for cows which had not returned home at around 7P.m and on the way, they spotted 4 men and they were able to identify the deceased Isaac and Evans who was carrying a goat on his shoulder. He said they started screaming and Evans threw the goat and they disappeared to unknown place. They went to where the goat was thrown and realized that it was for the accused Mark Kandie. They called the accused and informed him of the incident. He testified that Catherine informed him that the accused went to confirm what she told him and they gave him names of 2 suspects they identified and accused mobilized people to look for the suspects whom they got and tied and brought them to the centre one by one and started beating the suspects at the centre. https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/14713/eng@2024-11-21 4

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25. Pw8 stated that the accused did not inform the local administration about the theft and the suspects were tortured until the morning of 21st July,2020 and no report was made to the police. He stated that they were informed on the 21st July,2020 through phone and police visited the scene and found the deceased already dead and the other three suspects were not at the scene. He said the deceased’s body was taken to Baringo Referral Hospital mortuary. 26. Pw8 further stated that they proceeded to the scene again on 30th July,2020 to take photos and record statements from other witnesses and during his investigations, he noted that prior to the incident, no case of stock theft had been reported at Loruk Police station by accused herein. Postmortem was done on the body of the deceased and then he compiled the file and forwarded to state counsel for advice. 27. Upon the closure of the prosecution case, by ruling delivered on the 2nd May,2024, the court found that a prima facie case had been established against the accused person and he was placed on his defence in accordance with Section 306(2) of the criminal procedure code. Accused’s Defence Case 28. The accused Mark Kibiegon Kandie gave sworn statement in his defence. He testified that on 20th July,2020 at around 8 p.m, he received a call from one Catherine Kemei who informed him that they were on their way looking for their lost livestock which had not returned back home that evening when the found two people carrying a goat and after identifying one Evans and telling him they had identified him, he threw the goat and thy ran; Upon the suspects running, they screamed attracting people from the centre. He said he inquired from them if they identified the people and they said they were 4 but they identified 2. Accused said he informed them that he will go to the check. Accused said he was with his wife Jane Chirchir and he informed her that goats had been stolen and some people had been found. 29. Accused said that he got his torch and walked to his 2nd home and reached there around 10 p.m. and on counting the goats, he found one was missing; that the goat missing was brown in color. He further stated that he went to where the herder lived a distance of about one and half kilometer and on reaching there he inquired from her if all goats were present in the evening. 30. At around 11 p.m., he went with the herder and her son to check the goats and confirmed one was missing. He said at around 11 p.m. approaching mid-night and at 1 p.m. they locked the goats and left; and on reaching river Koiboware, they found water in the river and they crossed to Koiboware centre and while on the way, he heard someone asking “how many have you stolen”. He said the people at the centre were about 4 and one a pastor pw5 herein went to him and told him “Sorry brother”. He inquired why and the pastor told him the young men arrested told him they had stolen his goats. He said he flushed his torch and realized the 4 people were known to him, Evans Keitany, Cheboi, Isaac Chelang and Kipcheboi Chesia and he identified them in the photo. 31. He said that he did not talk with the 4 suspect and one village elder took him aside and informed him that there are men who looked for the suspects the whole night and had interrogated them and told him they were asking for forgiveness and had already been beaten. He said that there were many sticks on the ground and the pastor pw5 said they should take them behind the shop to protect them from cold. 32. He said as he went to his home which is about 600 metres away to charge the phone, there were elders, Pastor (pw5) and NPR. At his house he found his wife and son had reached home and were sleeping. He slept and about 5:00 a.m, he left to the centre and found the 4 men where they were but the crowd had increased. He said that he called the elder and area Assistant Chief and they were off network. 33. He called area chief who informed him that he had received report and he was going to call antistock theft unit and he would arrive in 30 minutes. Later the chief informed him police vehicle was https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/14713/eng@2024-11-21 5

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not available and asked him to look for means to take the suspects to police station. He looked for motor cycle but elders refused and said they may fall. He called Loruk police station but there was no vehicle and the OCS told them that even if they were brought to the police station, they were to record statement and would be released as courts were not operational due to covid. He said they advised him to take photos and take them to police station and after covid the suspects would be charged. 34. The accused said he took the photos as advised and called village elders and assistant chief relayed information. The Assistant Chief called OCS and they recorded statements of the 4 suspects as he went to rest. He said he ordered lunch for the 4 suspects from a nearby hotel and proceeded to a nearby shed to rest and at the time, the crowd had risen to about 200 people. He said the families of the suspects were present as they were being interrogated and they were pleading to elders not to take the suspects to court. 35. He said the elders called the suspects one by one to interrogate and on reaching the turn of the last suspect one, he walked short distance and fainted and shortly there were screams from the wife of the deceased. The elders went to ask what happened and learnt that the last suspect had died and the Assistant Chief covered him with a lesso. 36. The chief informed police of the death of one suspect and after about 2 hours, police vehicle arrived. The accused said he ordered food for the 3 remaining suspects as the police took the body of the deceased. He said the police asked who the owner of the death goat was and the accused identified himself to them. He said that he was the advised to go and record statement at Loruk police station the next day. Accused said after recording statement, the OCS requested them to wait for his call but he did not call. Accused called and he was asked to go the next day. 37. That the next day together with herder, they went to Loruk police station. He said fund raising was done for deceased’s funeral for the deceased and he contributed Kshs 500 after elders asked him to contribute through his mpesa. 38. He further stated that after a short while, he was told a brother of Isaac was looking for him to revenge. He went to police station to report and after about 19 days, he received a call by a person who introduced himself as DCIO Kabartonjo who informed him that he was required at Kabartonjo police station to record statement concerning the death of the deceased herein Isaac Chelal. He went to Kabartonjo but he did not find them and was informed to go to Kabarnet police station. At the police station, he was informed why he was called and placed in custody. He denied beating the deceased and said at the time he went to the scene; the deceased had been beaten. 39. DW2 Jane Chirchir who is the accused’s wife testified that on the 20th July,2020, at around 6;00 p.m. the accused arrived home; they checked their flock of cattle and goats and then accused ate and while eating, he received a call informing him that his goat had been stolen from their other homestead. she said he got a torch and went to check. Shortly after accused had left, together with her daughter, they followed the accused but they did not find him and they waited for him at the verandah of the goats’ structure and when he arrived, he informed them that he had gone to the herder and found the herder who informed him that he had locked the goats .Shortly after, the lady herder arrived and they checked where the thieves entered and then they decided to leave so as to follow up the next day. 40. She said they decided to return home. They went with the herder and her son and at some distance, she branched with her son. Dw2 and her daughter proceeded and accused was walking ahead them and on approaching Koibaware centre, they heard sounds of people and at the centre, they found many people and saw 4 people tied and a pastor speaking to the accused. She said she did not go close to where the 4 people were tied. She left with her daughter leaving accused behind. She said the accused arrived home at around 3:00a.m to charge the phone and at 6: 00 a.m, accused told her he was going https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/14713/eng@2024-11-21 6

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to look for police vehicle. she said around 10 a.m., she went to the centre and found the 4 people still there and people were in groups. She went back home and, in the evening, she learnt that a person had died. She denied that her husband went to look for the suspects in their homes neither did she see him with a whip. She said she saw many whips on the ground at the scene. 41. DW3 Jane Chepyegon testified that she worked for accused as a herder and on the 20th July,2020, she was at home when she locked the goats at 8:00 p.m. and went to sleep. She said the accused went to her home at around 11p.m to enquire whether she had locked the goats well and whether she counted them. She confirmed that together with her son Edwin, they followed accused to check the goats and found that a red goat was missing. She identified the goat in the picture produced in court as the one which was missing but she did not know the people in photos produced in court and she did not know if the accused went to anyone’s home. Analysis and Determination 42. 43. I have considered evidence adduced and I wish to consider whether the 3 ingredients for the offence of murder been proved beyond reasonable doubt. From section 203 of the penal code,3 ingredients set out hereunder have to be proved for the offence of murder. a. The death of the deceased. b. That the death of the deceased was unlawful and was caused by the accused c. That in the causing death of the deceased the Accused had malice aforethought. In the case of Republic Versus Andrew Omwenga (2009) eKLR the court stated as follows: “ It is clear from this definition that for an Accused person to be convicted of murder, it must be proved that he caused the death of the deceased with malice aforethought by an unlawful act or omission - there are therefore three ingredients of murder which the prosecution must prove beyond reasonable doubt in order to secure a conviction. They are: (a) The death of the deceased and the cause of the death, (b) That the Accused committed the unlawful act which caused the death of the deceased and (c) That the Accused had the malice aforethought". 44. The burden of proving the 3 ingredients set out above lie with the prosecution. In Republic vs Ismail Husseni Ibrahim (2016) eKLR the court on burden of proof in criminal cases stated that: To give meaning to this concept of burden of proof of beyond reasonable doubt in criminal cases the Federal Court of United States in the case of United States V Smith, 267 F. 3d 1154, 1 161 (D. C. Cir. 2001) (Citing In re Winship, 397 U. S. 358, 370, 90 S. Ct. 1068, 1076 (1970) (Harlan, J., concurring) the court stated: "The burden is upon the state to prove beyond reasonable doubt that the defendant is guilty of the crime charged. It is a strict and heavy burden. The evidence must overcome any reasonable doubt concerning the defendant's guilt, but it does not mean that a defendant's guilt must be proved beyond all possible doubt. A reasonable doubt is a fair, actual and logical doubt based upon reason and common sense. A reasonable doubt may arise either from the evidence or from a lack of evidence. Reasonable doubt exists when you are not firmly convinced of the defendant's guilt, after you weighed and considered all the evidence. A defendant must not be convicted on suspicion or speculation. It is not enough for the state to show that the defendant is probably guilty. On the https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/14713/eng@2024-11-21 7

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other hand, there are very few things in this world that we know with absolute certainty. The state does not have to overcome every possible doubt. The state does not have to overcome every possible doubt. The state must prove each element of the crime by evidence that firmly convinces each of you and leaves no reasonable doubt. The proof must be so convincing that you can rely and act upon it in this matter of the highest importance. If you find there's a reasonable doubt that the defendant is guilty of the crime, you must give the defendant the benefit of that doubt and find the defendant not guilty of the crime under consideration." (a)The death of the deceased 45. The fact that the deceased herein died is not in dispute. All the prosecution witnesses testified that the accused died on the 21st July,2020 at the scene of crime which was at Koibaware centre after sustaining injuries occasioned by the assault during the night of 20th July,2020. The post-mortem report produced as exhibit 1 in court confirmed that the deceased died on the 21st July,2020 and the cause of the death was cervical spine and head injury due to blunt force trauma due to assault. (b)That the Accused committed the unlawful act which caused the death of the deceased 46. As seen from the evidence summarized above, there is no doubt that the deceased died after being whipped upon being suspected for stealing the accused’s goat. There is no doubt that he was whipped together with his 3 co-suspects by several people. The question that arise is whether there is proof behind reasonable doubt that the accused was among the people who whipped the deceased occasioning him fatal injuries. 47. The accused’s witnesses Dw2 said while looking for a goat in the forest, they found the deceased and one Evans carrying a dead goat which they suspected belonged to accused. The called the accused informing him of his stolen goat and that prompted the accused to go to his second home confirm if his goat was missing. Pw2,pw3 and pw5 confirmed that the 4 suspects who included the deceased and pw4 were tied and beaten at Koiboware Centre. From the pictures produced in court, many whips are seen at the scene together with the dead goat and the 4 suspects who included the deceased and Pw4. 48. The deceased’s wife said accused was among the people who went for the deceased from their house and she saw accused with a rungu and a metal while Kemboi had a whip. She said her husband was beaten outside and he screamed and he was taken to Koiboware centre. she followed and found him seriously beaten and her husband died the next day at 4;30p.m. 49. Pw4 testified that upon being taken to the Centre, the accused and his group left him there and went for the deceased Isaac and when they arrived with the deceased, they were all beaten and among the people who beat they was the accused. 50. Further, even though Pw1 who was the deceased’s wife testified that accused was among those who went for her husband at night, in her evidence she said she heard her husband scream outside but she did not state who among the people who went for the deceased hit him before being taken to koiboware centre. Pw1 said she called her mother and followed them and on reaching the centre her husband had been beaten seriously. 51. On the other hand, pw5 Pastor Richard Cheptoo who arrived at the scene upon hearing screams said he found the 4 suspects who include the deceased being beaten by many people at Koiboware center .He further stated that Evans who was among the suspects asked him to ask for forgiveness from accused on their behalf as they had stolen his goat.Pw5 said he asked Evans where the accused was and Evans https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/14713/eng@2024-11-21 8

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told him he ha d not seen the accused and shortly after, accused arrived .pw5 informed the accused about the suspect’ s request for forgiveness and accused responded that he will let the law take its cause and that he had lost 8 goats and the one stolen that da was the 9th one. 52. From Pw5’s evidence, he found the 4 suspects being beaten and they were screaming. From his evidence, accused was not present at the time and the accused arrived while he was there. This casts doubt on pw4’s evidence to the effect that the accused was among those who participated in whipping him and the other suspects who included the deceased. 53. Further, pw8 the investigating officer testified that he received report death resulting from mob justice. Pw2 and pw3 assistant chief and village elder respectively arrived at Koiboware centre and found the deceased and the other suspects having been beaten and there was a dead goat and whips at the scene. 54. In view of the above evidence and the accused’s explanation in his defence that he went to his second home to check if his goats had been stolen upon being called by Dw2 who informed him that they found thieves carrying his goat at the forest, doubt arise as to whether he was among the members of public who beat the deceased and the other 3 suspects at the scene. 55. Having found that the prosecution failed to prove beyond reasonable that that the accused unlawfully caused the death of the deceased, I will not proceed to consider the 3rd ingredient of proof of malice aforethought. 56. Final Orders: - 1. Accused acquitted for the offence of murder. 2. Right of appeal 14 days. JUDGMENT DELIVERED, DATED AND SIGNED VIRTUALLY AT KABARNET THIS 21ST DAY OF NOVEMBER 2024.** …………….………………… RACHEL NGETICH JUDGE In the presence of: CA Elvis Ms. Ratemo for state Ms. Kemunto H/b for Mr. Mongeri for accused Accused present https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/14713/eng@2024-11-21 9

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