Republic v Kipkemoi Lawrence Bongei

7. PW. 5, No.107737 P.C. Bosire Nyakundi Fred testified that he was at the Exclusive Club on the material day, where he heard of the incident but did not witness the incident. 8. PW. 6, Cheruiyot Benard, a boda boda operator testified that on the material day he witnessed the altercation whereby the accused broke a bottle and stabbed the deceased on the neck. He testified that the victim bled profusely and was taken to hospital for medical treatment where he succumbed. He confirmed that he did not know the accused person prior to the incident but saw the accused at the crime scene. 9. PW. 7, Dr. Kiprono Koech, a medical officer testified that he conducted an autopsy on the deceased and formed the opinion that the cause of death was hemorrhagic shock due to sharp left anterior lateral neck cut and produced the post mortem report. 10. He confirmed that blood samples of the deceased were collected and taken for forensic analysis. PW. 8, Polycap Lutta Kweyu, a government chemist testified that a DNA analysis was done on blood samples of the deceased and the accused and articles of clothing recovered from the accused. 11. The government chemist report and exhibit memo were produced by PW.10, Polycap Lutta Kweyu which revealed that the DNA profile in item B which was a striped sweater had mixed DNA profiles of the accused and the deceased. 12. PW. 9, No.75527 Corporal David Kipchumba, a crime scene officer testified that he attended the crime scene, took photographs of the crime scene and the body of the deceased and produced the photographs and a certificate in court. 13. PW. 11 No.73104 Senior Sergeant Ruth Anzala, a police sergeant and the investigating officer testified that she was assigned to investigate the murder. She stated that the accused had already been apprehended and was in police custody. 14. She stated that in her investigation she relied on CCTV camera footage that was given to her by the manager at Exclusive Club. She further stated that as part of her investigations, she collected witness statements, witnessed the autopsy, collected blood samples and articles of clothing from the accused and deceased and forwarded them to the government chemist for forensic analysis. 15. In his defence, Lawrence Kipkemoi Bongei (DW.1) stated that on 8th March, 2020, he worked at Mwananchi Hotel and left work a few minutes past 7.00 pm. D.W.1 said that since it was raining, he boarded a Motor Bike to a nearby joint called Exclusive Club to watch a football match being aired on television. 16. DW.1 said that he ordered for a bottle of whisky to take as he waited for his girlfriend to join him. He further stated that when his girlfriend arrived, he ordered for more drinks and in the process they started getting drunk. 17. DW.1 said that he sought for a taxi to leave and that he heard a commotion while talking to a taxi driver. He said he was prompted to rush inside the club to check on what was happening and found that another guy had grabbed a girl who was with his friend Joseph in the club. 18. He said there was fighting between the two men. DW.1 said that the commotion took a few minutes. He said that when he went to check on the taxi, he found that he had left and was prompted to take a boda boda. He said he could not move far because he was blocked by boda boda riders. DW.1 said he was assaulted by members of the public who took him back to the club where he was mercilessly beaten. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16332/eng@2025-10-30 2

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19. DW.1 said he was later dragged to the Police Station while bleeding profusely. He said he was later taken to Kericho County Referral Hospital for examination and treatment. 20. DW.1 said he was later arrested and accused of assaulting someone. He said he was later charged with ofience of murder. He said he was very drunk that evening having taken a lot of whisky. 21. DW.1 said he does not remember assaulting the deceased whom he did not know. He denied committing the ofience of murder against the deceased. 22. In order for the ofience of murder to be proved, two ingredients must exist. First, is the act of death taking place (actus reus) and two, malice aforethought. 23. In this case, there is no doubt that the Accused was placed at the scene of crime. There is also no dispute that the deceased died as a result of haemorrhagic shock due to sharp left anterior lateral neck cut wound. There is direct and scientific evidence indicating that the Accused was the assailant who infiicted the injuries upon the deceased. The element of actus reus is established. 24. The second element is malice aforethought. It is apparent that the accused did not know the deceased. The evidence presented show that the deceased was assaulted in a club where people were taking alcohol. It would also appear that the accused was drunk. 25. The fighting which arose in the club was spontaneous and not planned. There was no evidence of malice aforethought on the part of the accused. The evidence seem to suggest that the Accused was intoxicated and used a bottle of whisky to assault the deceased while drunk. 26. The fatal injury was caused by a single stab. 27. Having failed to establish the ingredient of malice aforethought, the ofience of murder was therefore not proved against the Accused. 28. However, the ofience of manslaughter was established by the evidence tendered. 29. Consequently, the Accused namely: Lawrence Kipkemoi Bongei is found guilty for the ofience of Manslaughter. He is convicted for Manslaughter Contrary to Section 202 as read with Section 205 of the Penal Code. DATED, SIGNED AND DELIVERED AT KERICHO THIS 30TH DAY OF OCTOBER, 2025. .………………………. J. K. SERGON JUDGE In the presence of: C/Assistant - Rutoh Prosecutor – Masisa Accused – Present in Person W. K. Ngeno for the Accused https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16332/eng@2025-10-30 3

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