Republic v John Cheruiyot Kirui

6. No. 100971 PC Gedion Osundwa Makokha (PW10) stated that he recovered the wooden stick from the scene. PW10 further stated that the Accused’s second wife (PW3) brought two pangas, a pair of white shoes, a light green shirt stained with blood, a banner with blue, yellow stripes and a blue white woolen cloth stained with blood to the police station and the same were presented to the Government Analyst (PW9) for forensic examination. 7. Dr. Richard Kimutai Langat (PW9) determined that the DNA profiles on the bloodied wooden stick, long pointed panga and woolen cloth contained the mixed DNA profiles of the Accused and the deceased. Further that the DNA profiles generated from the blood stains in the deceased’s shirt and the accused’s rubber shoe and CCM banner matched the Accused’s DNA profile. 8. Dr. Miriam Wanjala (PW8) conducted a Post Mortem examination on the deceased and determined the cause of death as head injury with bleeding to the brain. 9. After the Prosecution had wrapped up their case, this Court ruled on 18th September 2018 that the Accused had a case to answer and put him on his Defence. The Defence Case 10. The Accused (DW1) gave sworn testimony and did not deny that he hit the Accused on the head on the material day. He raised the defence of self defence. 11. The Accused stated that the deceased had taken cattle to graze on an unauthorized field and when he told him to move them, he refused and instead attacked him. That the deceased was armed with a panga and the deceased cut him twice causing him injuries. The Accused further stated that he hit the deceased on the head twice as a means of defending himself. 12. The Accused called witnesses i.e. Esther Maina (DW2), Robert Kipkemoi Kirui (DW3) and Richard Langat (DW4) and Caren Chepkemoi (DW5). DW2, DW3 and DW4 and all testified to seeing the deceased armed with a panga and the Accused armed with a stick. They all stated that the two (Accused and deceased) argued over the grazing issue and they got into a scuffle. They told the court that by the time they got to the crime scene, they found the deceased and the Accused being carried and taken to hospital. Ingredients of the offence 13. The offence of murder contains two elements, the actus reus encapsulated in Section 203 of the Penal Code and the mens rea provided for in Section 206 of the Penal Code. 14. Section 203 of the Penal Code provides:Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder. 15. Section 206 of the Penal Code provides:Malice aforethought shall be deemed to be established by evidence proving anyone or more of the following circumstances— (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 https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/15297/eng@2024-11-21 2

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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; 16. (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. For the offence to be established, the Prosecution must prove the above elements beyond reasonable doubt. The Court of Appeal in Chiragu & another vs Republic (Criminal Appeal 104 of 2018) [2021] KECA 342 (KLR) (17 December 2021) (Judgment) held:“ The prosecution in an information of murder has the singular task of proving the following three ingredients in order to secure a conviction; that the death of the deceased occurred; that the death was caused by an unlawful act of commission or omission by the accused and that the accused had malice aforethought as he committed the said act.” 17. Before analysing the evidence, I have noted that Jane Chebet Kirui (PW1) was the Accused’s wife. The law on the competency of evidence between spouses is provided for under Section 127(2) of the Evidence Act which states that: In criminal proceedings every person charged with an offence, and the wife or husband of the person charged, shall be a competent witness for the defence at every stage of the proceedings, whether such person is charged alone or jointly with any other person: Provided that— 18. (i) the person charged shall not be called as a witness except upon his own application; (ii) save as provided in subsection (3) of this section, the wife or husband of the person charged shall not be called as a witness except upon the application of the person charged; (iii) the failure of the person charged (or of the wife or husband of that person) to give evidence shall not be made the subject of any comment by the prosecution. Section 127(3) of the Evidence Act provided exceptions where the evidence of a spouse could be admitted. The aforementioned section of the law provided: In criminal proceedings the wife or husband of the person charged shall be a competent and compellable witness for the prosecution or defence without the consent of such person, in any case where such person is charged— 19. (a) with the offence of bigamy; or (b) with offences under the Sexual Offences Act (No. 3 of 2006); (c) in respect of an act or omission affecting the person or property of the wife or husband of such person or the children of either of them, and not otherwise. (Emphasis mine) The law above is self-explanatory. In the present case, it was not disputed that the deceased was a son to the Accused and Jane Chebet Kirui (PW1). This fell under the exceptions provided for in Section https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/15297/eng@2024-11-21 3

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127(3) of the Evidence Act above and, in the circumstances, it is my finding that PW1’s testimony against her husband was admissible in these proceedings. The fact of death 20. There was no doubt that the deceased Nickson Kiplangat died on 8th October 2017. The Prosecution presented the eye witnesses to the commission of the offence. Jane Chebet Kirui (PW1), Wycliffe Kiptoo (PW4) and Gibson Rotich (PW6) all testified to seeing the Accused beat and cut the deceased on the material day. PW1 in particular testified that her son succumbed to his injuries the following day in hospital. 21. In addition to the eye witnesses’ testimonies, Dr. Miriam Wanjala (PW8) conducted a post mortem examination on the deceased’s body on 16th October 2017 at Tenwek Hospital. 22. It is my finding from the above evidence that the death of the deceased was established. Indeed, the fact of death was not contested. Cause of death 23. Evidence on the cause of death was given by Dr. Miriam Wanjala (PW8). She testified that upon examination, she found bruises on the lower limbs and neck, a blood clot on the left ear, swelling on the right knee and a depressed skull fracture. That the injuries were caused by a blunt object. 24. It was PW8’s professional opinion that the cause of death was a head injury with bleeding in the head. Her testimony remained uncontroverted upon cross examination. She produced a Post Mortem Report as Prosecution’s Exhibit No. 4 25. I have looked at the Post Mortem Report and I have noted that the findings contained in the Post Mortem Report mirrored the testimony of PW8. The post mortem examination result accorded with the eye witness account that the deceased was assaulted. It is my finding therefore that the cause of death was a head injury with bleeding into the brain. The death was clearly unlawful. Whether the Accused caused the death of the deceased 26. The Prosecution submitted that the exhibits collected from the scene were subjected to forensic examination and the result showed that the Accused was in contact with the deceased before his death. That the Accused had also admitted that he fought with the deceased before his death. 27. There were eye witnesses to the commission of the offence. Jane Chebet Kirui (PW1) testified that she saw the Accused hit the deceased and she screamed for help. Wycliffe Kiptoo (PW4) testified that he saw the Accused beat the deceased with a stick and cut him on his head using a panga. Gibson Rotich (PW6) testified that a disagreement arose between his father (Accused) and his father cut his brother (deceased) with a panga and hit with a stick. The three witnesses were subjected to cross-examination and they remained unshaken in their testimony. 28. In his defence, the Accused testified that on the material day, he saw the deceased grazing cows on the portion of land that belonged to his second wife (PW3). That when he asked the deceased and his brother to drive away the cattle, he refused. The Accused further testified that the deceased became angry and removed a panga with the intention of cutting him and proceeded to cut him. That he responded by hitting the deceased on the head with a stick. 29. The Accused in his defence admitted to beating the deceased but stated that he did it out of self defence. To be very clear, the Accused admitted to hitting the deceased twice on the head with a stick. https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/15297/eng@2024-11-21 4

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30. Dr. Miriam Wanjala (PW8) stated that the deceased’s injuries were caused by a blunt object. 31. No. 100971 PC Gedion Osundwa Makokha (PW10) testified that he was the investigating officer. PW10 stated that when he visited the scene, he recovered a wooden stick (Prosecution Exhibit No.2). That the Accused’s second wife (PW3) brought the following exhibits to the Police Station; a sharp pointed panga (Prosecution Exhibit No.3), a curved panga (Prosecution Exhibit No.1), a pair of white shoes (Prosecution Exhibit No.7), a light green shirt stained with blood (Prosecution Exhibit No.6), a banner with blue, yellow stripes (Prosecution Exhibit No.8) and a blue white woolen cloth stained with blood (Prosecution Exhibit No.9). PW10 further stated that he took the items to the Government Chemist for forensic analysis. 32. Richard Kimutai Langat (PW9) who was the Government Analyst testified that after performing the forensic analysis, he found that the blood stains on the wooden stick (Prosecution Exhibit No. 2) and the woolen cloth (Prosecution Exhibit No. 9) had the mixed DNA profiles of the Accused and the deceased. PW9 produced the Government Analyst Report as Prosecution Exhibit No.10. 33. I have looked at the Government Analyst Report and I have confirmed that it mirrored PW9’s testimony. That it further determined that the DNA profiles on the bloodied wooden stick and long pointed panga were the mixed DNA profiles of the Accused and the deceased. I have also noted that the DNA profiles generated from the blood stains in the deceased’s shirt and the Accused’s rubber shoe and CCM banner matched the Accused’s DNA profile. 34. This evidence clearly linked the Accused to the offence. It demonstrated the fact that the Accused and the deceased were in close contact before the deceased’s death thereby placing the Accused at the scene. It shows that there was a fight in which both the deceased and the Accused got injured and bled. The finding of the Accused’s and deceased’s mixed DNA on the wooden stick confirms to this court that the wooden stick was the weapon that was used to strike the fatal blow. Further, the Accused admitted that he struck the deceased with a stick on the head. It is my finding therefore that the Accused caused the unlawful death of the deceased. Whether the Accused acted with malice aforethought. 35. I have already set out the circumstances under which malice aforethought may be inferred under section 206 of the Penal Code. 36. The Court of Appeal in Roba Galma Wario vs Republic (2015) eKLR held:“ 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.” 37. In Bonaya Tutu Ipu & another vs Republic (2015) eKLR, the Court of Appeal held:“ It is in rare circumstances that the intention to cause death is proved by direct evidence. More frequently, that intention is established by or inferred from the surrounding circumstances. In the persuasive decision of Chesakit v Uganda, CR App No 95 of 2004, the Court of Appeal of Uganda stated that in determining a charge of murder whether malice aforethought has been proved, the court must take into account factors such as the part of the body injured, the type of weapon used, if any, the type of injuries inflicted upon the deceased and the subsequent conduct of the accused person. Earlier in Rex v Tubere s/o https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/15297/eng@2024-11-21 5

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Ochen [1945] 12 EACA 63, the former Court of Appeal for Eastern Africa stated thus on the issue: It (the court) has a duty to perform in considering the weapon used and the part of the body injured, in arriving at a conclusion as to whether malice aforethought has been established, and it will be obvious that ordinarily an inference of malice will flow more readily from the case, say, of a spear or knife than from the use of a stick……” 38. The Prosecution submitted that the Accused had malice aforethought when he unlawfully killed the deceased. The Defence on the other hand submitted that the Accused had no intention of killing the deceased and only hit him in self defence. 39. The Accused stated that on the material day, the deceased was grazing cattle on his second wife’s (PW3) piece of land and when he told him to remove the cattle, he (deceased) refused. The Accused further stated that when he drove away the cattle himself, the deceased became angry and removed a panga and swung it with the intention of cutting him. That he evaded two attempts but on the third attempt, the deceased cut him on his forehead. 40. The Accused admitted that he hit the deceased with a stick on the head. That the deceased then cut him again and he responded by hitting the deceased again. He said that blood oozed from his head and he fell down. That soon after, members of the public arrived and took them to hospital where he was treated by surgery. 41. The Accused stated that he was only armed with a stick and it was the deceased who was armed with a panga. 42. Esther Maina (DW2) who was the Accused’s mother and the deceased’s grandmother testified that on the material day, as she was having tea with Richard Langat (DW4), she saw the deceased arrive with cattle and took them to an area where they were not allowed to graze. That the deceased was armed with a panga and the deceased said that he was going to kill his father. She further testified that after a few minutes she heard screams from the field and before she got to the field, she saw people carrying the deceased and the Accused to motor vehicles and were taken to hospital. 43. Robert Kipkemoi Kirui (DW3) testified that on the material day, he heard the Accused telling some boys to go and tell the deceased to graze the cattle in a different field. That the Accused went and attempted to drive the cattle away himself and they (deceased and accused) begun quarrelling and they started fighting. DW3 stated that he was far from the scene but he saw the deceased armed with a panga while the Accused had a stick. 44. It was DW3’s testimony that he decided to go to the grazing field but when he arrived, he did not find the deceased and the Accused as they had been taken to hospital by good Samaritans. 45. Richard Langat (DW4) testified that on the material day, as he was having tea with Esther Maina (DW2), he saw the deceased arrive with cattle took them to an area where they were not allowed to graze. That the deceased was armed with a panga and the deceased said that he was going to kill his father. It was DW4’s testimony that after a few minutes he heard screams from the field and before he got to the field, he saw people carrying the deceased and the Accused to motor vehicles and were taken to hospital. 46. Caren Chepkemoi (DW5) who was the Accused’s daughter testified that her father married a second wife and it caused friction within the family. That the Accused was a loving and caring father and was surprised to learn that he had been accused of murdering her brother. DW5 further testified that traditional cleansing rights had been conducted and they had lived peacefully since. https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/15297/eng@2024-11-21 6

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47. The Defence submitted that the Accused had no intention of killing the deceased. That as he walked in the grazing field and guiding the cattle away, the deceased attacked him. That in the absence of the ingredient of malice aforethought, the murder charge fell flat. He relied on Republic vs Priscillah Wanjiru Salome (2017) eKLR and Republic vs Simion Owuor Otieno (2017) eKLR. 48. The Accused pleaded self defence. Section 17 of the Penal Code provided:Subject to any express provisions in this Code or any other law in operation in Kenya, criminal responsibility for the use of force in the defence of person or property shall be determined according to the principles of English Common Law. 49. In Victor Nthiga Kiruthu & another vs. Republic (2017) eKLR, the Court of Appeal stated:“ The principles that have emerged from these and other authorities are as follows:- 50. (i) Self defence, as the term suggests, is defence of self. It is the use of force or threat to use force to defend one self, one’s family or ones property from a real or threatened attack. Self defence is therefore a justification in the application of force recognized by the common law. (ii) The law generally abhors the use of force or violence, but there are instances when a person is justified in using a reasonable amount of force in self defence if he or she believes that the danger of bodily harm is imminent and that force is necessary to repel it, meaning that the force must be necessary and that it must be reasonable. (iii) It is not necessary, however, for there to be an actual attack in progress before the accused may use force in self defence. It is sufficient if he apprehends an attack and uses force to prevent it. (iv) The danger the accused apprehends however must be sufficiently specific or imminent to justify the action he takes and must be of a nature which could not reasonably be met by mere pacific means. (v) What amounts to reasonable force is a matter of fact to be determined from evidence and the circumstances of each case.” Similarly, the Court of Appeal in Abraham Kibet Chebukwa vs Republic (2020) eKLR held:“ ……….It is trite law that self defence is an absolute defence on a charge of murder provided that, the accused person did not in the circumstances of the case apply excessive force. This was reiterated by this Court, in the case of Mokwa vs Republic, [1976-80] 1 KLR 1337 where the Court rendered itself as follows:“…the judge correctly directed himself that where a person in the legitimate right of self-defence of person or property uses excessive force or more force than was necessary in the circumstances (always providing that all other elements of self-defence are present) he should not be convicted of murder but of manslaughter……” https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/15297/eng@2024-11-21 7

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51. The Court of Appeal in Ahmed Mohamed Omar and 5 Others vs Republic (2014) eKLR held:“ It is both good law and good sense that a man who is attacked may defend himself. It is both good law and common sense that he may do, but may only do, what is reasonably necessary. But everything will depend upon the particular facts and circumstances…… …..Some attacks may be serious and dangerous. Others may not be. If there is some relatively minor attack, it would not be common sense to permit some act of retaliation which was wholly out of proportion to the necessities of the situation. If an attack is serious so that it puts someone in immediate peril, then immediate defensive action may be necessary. If the moment is one of crisis for someone in immediate danger, he may have to avert the danger by some instant reaction. If the attack is over and no sort of peril remains, then the employment of force may be way of revenge or punishment or by way of paying off an old score or may be pure aggression. There may be no longer any link with a necessity of defence……. …….The defence of self-defence either succeeds so as to result in an acquittal or it is disproved, in which case as a defence it is rejected. In a homicide case the circumstances may be such that it will become an issue as to whether there was provocation so that the verdict might be one of manslaughter. Any other possible issues will remain. If in any case the view is possible that the intent necessary to constitute the crime of murder was lacking, then the matter would be left to the jury.” 52. It was the Defence’s further submission that the Accused acted in self defence. That Naomi Chepkirui (PW3) was stood down after she testified that the deceased unleashed a knife on the Accused and launched an attack. It was their further submission that Wycliffe Kiptoo (PW4) stated that he saw the Accused go towards the deceased and saw the deceased cut the Accused with a panga on the head. That at the time of testifying, the Accused had a big gash on his head as a result of the attack. 53. The Defence submitted that the deceased was disgruntled by the Accused’s decision to marry another wife. They further submitted that the deceased was overheard saying that he would kill the deceased. That there was a confrontation between the Accused and the deceased but it was the deceased who was armed with a panga. They relied on Republic vs Simion Owuor (supra). 54. I have carefully analyzed the Accused’s defence alongside the Prosecution evidence. The Accused called four witnesses in his defence. It was apparent that the Accused was angered by his deceased son’s disobedience to graze first household’s cattle on the portion of grazing land that he had set aside for his second household and that he went to the grazing field to teach him a lesson. Esther Maina’s (DW2) told the evidence that she heard the deceased say that he was going to kill his father. 55. I have considered DW2 ‘s evidence. It was not truthful. She said that she was at her house taking tea with DW4 and she saw the deceased at the grazing field. She did not say that he was within her homestead and that they conversed. She could not therefore have heard him issue a threat. While it was true that the deceased had a panga, his brother Gibson Rotich PW6 said that the deceased always had a panga and a stick when going about his duties of herding cattle. It cannot therefore be true that he had armed himself with a panga to attack the father. 56. DW3’s evidence was not believable at all. He said he was far from the scene but was able to witness the quarrel and fight. His evidence that he got to the scene after the Accused and deceased had been taken to hospital only goes to confirm that he was not a witness. His evidence was of no value. 57. Richard Langat (DW4)’s evidence was also of no probative value as he was not with the deceased at the grazing field but only heard screams while taking tea at DW2’s home. He did not say that he was https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/15297/eng@2024-11-21 8

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in conversation with the deceased earlier. Caren Chepkemoi’s (PW5) testimony only shed light on the circumstances leading to the fight between her father (Accused) and her brother (deceased). She stated that the friction in the family arose when the father married the second wife. It is my conclusion that the totality of the defence witness testimony did little to shake the prosecution’s case. It was not credible at all. 58. As stated earlier, it was the Accused’s testimony that he struck the deceased on the head out of self defence. That the deceased had threatened and swung a panga at him and cut him. This evidence however was contrary to the evidence of Jane Chebet Kirui (PW1) and Wesley Cheruiyot Ngetich (PW2) who all testified that they saw the Accused hitting the deceased while the deceased was lying on the ground. PW2 testified that he asked the Accused to stop hitting the deceased who lay on the ground. 59. Gibson Rotich (PW6) was the deceased’s brother and was with him on the material day in the field grazing cattle. He testified that the Accused came over and an argument ensued between him and the deceased regarding the grazing of the cattle on PW3’s land and the Accused cut the deceased with a panga and hit him on the head with a stick. That when the deceased fell down, the Accused hit the deceased severally on his head and feet and when he told the Accused to let go, the Accused simply carried on with the assault. PW6’s testimony remained uncontroverted after cross examination. 60. From the above, I am not convinced that the Accused was defending himself. While it was true that there was a disagreement and a scuffle between the deceased and the Accused leading to injuries to both, the evidence indicated that the Accused attacked the deceased and continued to attack him even when he lay on the ground (presumably helpless). The Prosecution evidence on the repeated assault of the deceased was corroborated while the Accused’s witnesses did not witness the commission of the offence and could not therefore testify as to its circumstances. 61. From the analysis above, I find that the Accused used excessive force while assaulting the deceased and his defence of self defence did not hold water as he was the aggressor. The Accused’s defence was an attempt to mislead the court. I accordingly dismiss the same. 62. It has been established through evidence that the Accused beat up his son serving him a fatal blow. I have however agonized over whether or not the Accused in assaulting his son had the malicious intent to kill him. In Waweru vs Republic (Criminal Appeal 98 of 2020) [2023] KECA 622 (KLR) (26 May 2023) (Judgment), the Court of Appeal held:“ In the case of Nzuki v Republic [1993] eKLR, this court defined malice aforethought as: “…a term of art and is either an express intention to kill, as could be inferred when a person threatens another and proceeds to produce a lethal weapon and uses it on his victim; or implied, where, by a voluntary act, a person intended to cause grievous bodily harm to his victim and the victim died as the result. See the case of Regina v Vickers, [1957] 2 QB 664 at page 670. An intention connotes a state of affairs which the person intending does more than merely contemplate: it connotes a state of affairs which, on the contrary, he decides, so far as in him lies, to bring about, and which, in point of possibility, he has a reasonable prospect of being able to bring about, by his own act of volition. See the case of Conliffe v Goodman, [1950] 2 KB 237.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/15297/eng@2024-11-21 9

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In the same case, the court went on to state: “Before an act can be murder, it must be aimed at someone and in addition it must be an act committed with one of the following intentions, the test of which is always subjective to the actual accused: i. The intention to cause death; ii. The intention to cause grievous bodily harm; iii. Where the accused knows that there is a serious risk that death or grievous bodily harm will ensue from these acts, and commits those acts deliberately and without lawful excuse the intention to expose a potential victim to that risk as the result of those acts. It does not matter in such circumstances whether the accused desires those consequences to ensue or not and in none of these cases does it matter that the act and the intention were aimed at a potential victim other than the one who succumbed. Without an intention of one of these three types, the mere fact that the accused’s conduct is done in the knowledge that grievous harm is likely or highly likely to ensue from his conduct is not by itself enough to convert a homicide into the crime of murder….” (Emphasis added) 1. Upon my review of the evidence in respect to malice aforethought, it is my finding that this was a case of an enraged parent (Accused) who sought to “discipline” their child (deceased) but the discipline went awry. The evidence shows that the Accused was enraged by his son’s disobedience to graze the first household’s cattle on land he had reserved for his second wife. It appears that his rage was motivated by issues of family resources. His beastly act of attacking and dealing a fatal blow to his son was however not excusable. Having gone through the evidence, I do not find sufficient evidence to indicate that the Accused may have planned the beating and eventual killing of his son. It was discipline gone overboard. I therefore find that the ingredient of malice aforethought was not proven to the required legal standard. 64. In the end, I apply the provisions of Section 179 (2) of the Criminal Procedure Code to substitute the charge of murder with that of the lesser charge of manslaughter. 65. The Accused is convicted of the offence of manslaughter contrary to section 202 as read with section 205 of the Penal Code. Orders Accordingly JUDGEMENT DELIVERED, DATED AND SIGNED THIS 21ST DAY OF NOVEMBER, 2024. ........................ R. LAGAT-KORIR JUDGE Judgement delivered in the presence of the Accused, Mr. Mugumya for the Accused, Mr. Njeru for the State and Siele (Court Assistant). https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/15297/eng@2024-11-21 10

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