Republic v Gibson Nangat Stephen [2017] KEHC 2179 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KAPENGURIA

CRIMINAL CASE NUMBER 5 OF 2017

REPUBLIC...............................................PROSECUTION

VERSUS

GIBSON NANGAT STEPHEN.........................ACCUSED

JUDGMENT

GIBSON NANGAT STEPHEN alias KORTIN, is charged with the offence  of Murder, Contrary to Section 203 as read with Section 204 of the Penal Code.

The Particulars of this offence are that on the 4th day of March, 2017 at around 19:00hours, at Rena Village in Cheptalele Location within Pokot Central Sub-County in West Pokot County, the accused unlawfully murdered Pius Yego Lomaingole.

The prosecution case is that the accused is a neighbour of the deceased at Chesegon.  PW-2 in this case is also their neighbour.  On 4. 3.2017 at about 7. 00pm PW-2 who is a minor was at home with a younger child.  Kortin, the accused herein went to the place while armed with a gun.  He asked PW-2 where his father was.  PW-2 told him that he had not arrived.  The accused then said he should shoot at PW-2 instead of his father.  He shot at him twice but missed.  PW-2 picked the younger child and escaped.  He went to the lower side of their farm where he joined his mother.  At that time PW-1 was at home with her husband (the deceased), a child called J C and an employee called Chenang’at.  They were outside the house.  They heard gunshots in the neigbouring home.  PW-1 got to the house, laid the child and moved outside.  She saw the accused armed with a gun.  It was a long gun.  She recognized the accused as their neighbour, Kortin.  The sun was going down and there was enough sun light.  PW-1 asked the deceased whether he had disagreed with him, and the deceased said no.  The deceased called the accused “in-law” and asked him what was wrong that he was firing his gun close to the children.  The accused told him not to talk to him.  He told the deceased that he’ll head immediately to Kamatira.  The deceased asked the accused what he’ll go for at Kamatira.  He told the accused to give him transport to the place.  The accused said he’ll kill him right away to get free transport.  The accused immediately fired a shot which passed on the house roof.  He fired a second one which got the deceased.  The deceased fell down.  PW-1 screamed.  Neighbours got to the scene.  The bullet had passed through his both thighs and hit the house wall.  The accused escaped after shooting him.  PW-8 and other neighbours present administered First Aid to the deceased.  They made a stretcher and took the deceased near the road.  They called for a vehicle to rush him to hospital but he died before the vehicle had arrived.  PW-8 called the police at Chesegon.  The police got to the scene, among them the PW-5 in this case.  They took the body to Kapenguria County Hospital Mortuary.

On 13. 3.2017, PW-3, the father to the deceased identified the body for postmortem.  PW-4 conducted the postmortem.  He noted that the body had bilateral gunshot wounds on the lower limbs.

1. Entry wound to the lateral aspect of the upper left thigh, measuring ½ cm in diameter and an exit wound on the medial aspect measuring 4cm in diameter.

2. Entry wound on lateral aspect of upper right measuring ½ cm in diameter and an exit wound on the medial aspect measuring 4cm in diameter.

He concluded that the cause of death was as a result of severe acute haemorrhage, secondary to vascular and soft tissue injury, secondary to gunshot wounds.

PW10 investigated the case.  He had visited the scene where the body had been taken to, near the river bank.  He tried to get to the scene of the alleged offence but was unable to as angry villagers were busy demolishing the accused’s house and destroying his properties.  They were also looking for him, baying for his blood.  He had gone underground.  On 7. 3.2017 PW-10 went to the scene to look for bullet cartridges.  His search was not however successful given that the area is hilly and busy.  He informed PW-1 and PW-9 who’s the area Kenya Police Reservist, to assist in looking for bullet cartridges around the scene.  On 9. 3.2017 PW-1 recovered one spent bullet cartridge near the homestead, about 10 metres away.  PW-9 also recovered 3 such spent bullet cartridges.  PW-10 collected them.  He marked them A1 to A4 and forwarded them to firearm examiner.  They were examined and he received a report dated 21. 4.2017.  The report indicates that all the bullets were of caliber 7. 62x39mm.  Exhibit A1 to A3 were fired by one gun.  Exhibit 4 was fired by a different gun.  Exhibit 1 is the cartridge given by PW-1 while the rest were given by PW-9.  The scene is at the border of West Pokot and Elgeyo Marakwet.  There’s inter-tribal conflicts in which illegal firearms are used.  A4 could have been fired in such conflicts.  A1 and A3 could be the ones fired by the accused.  They were shot from an AK-47 Rifle.

The accused later surfaced and presented himself at Rumut AP’s Camp.  He was taken for age and mental assessment.  He was estimated then to be 27 years old and was found to be of sound mind.  He was then charged with the offence of Murder.

The accused in his defence admitted that he killed the deceased.  He alleged that they live in a risky area, where there are incidents of cattle rustling.  They therefore own and carry illegal guns.  He had an AK 47 Rifle.  The deceased was his friend and they were doing most of their activities together.  Two weeks prior to his death they had gone to Marakwet to steal cows.  They stole five of them.  They agreed deceased will keep for sharing later.  On 4. 3.2017 the accused went to the deceased for his share of the animals.  The deceased was with his wife.  The accused asked him for the cows, and the deceased responded by asking back, “which cows?”  The accused told him the ones they stole.  The deceased got into his house and armed himself with a gun.  The accused ran and hid behind stones.  The deceased fired two shots at him.  The accused decided to shoot back to scare him and get a chance to escape.  He shot at him and ran to his house.  He shot only once.  He later heard screams emanating from the deceased’s home.  He was not aware the bullet had got him.  He slept and learnt the following day that the bullet got him and he passed on.  He went to the police. Villagers went to his house and took away all the animals.

The accused alleged that he never intended to kill the deceased who was his in-law.  On the material day they were from an FGM ceremony and they had taken alcohol.

The offence the accused is facing of Murder is defined under Section 203 of the Penal Code.  It’s committed by any person who of Malice aforethought causes death of another person by an unlawful act or omission.

“Malice aforethought” under section 206 of the Penal Code is deemed to be established by evidence proving any one 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 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……………………..”

Given the above provisions the ingredients for the offence of Murder which the court needs determine whether they have been established by the prosecution beyond reasonable doubt, are:-

1. Whether the cause of death to the deceased has been established;

2. Whether the accused person’s act or omission gave rise to the cause of death to the deceased;

3. Whether the accused person intended to either kill the deceased or to cause him grievous harm;

4. Whether the accused person had knowledge that his action would probably cause death or grievous harm to the deceased; and

5. Whether the accused person simply intended to commit a felony.

There’s no dispute in the case that the accused is the one who fired the shot, using an illegally possessed AK 47 rifle, which caught the deceased on both thighs, leading to his death.  The cause of death to the deceased is therefore established and is due to an illegal act by the accused person.  There’s evidence that the accused intended to kill the deceased.  He firstly threatened to kill PW-2 in place of his father whom he did not find.  He shot twice at him but missed.  When he got to the deceased, before he opened fire at him he told him, “I will kill you right now to get free transport.”  These words by him, as were expressed by PW-1, shows he intended to kill the deceased when he opened fire.  He shot twice.  When the first bullet missed the target and hit the roof of the house he shot another one which got the deceased and killed him.

Malice aforethought is therefore also established by the prosecution beyond reasonable doubt.

The accused’s defence is not corroborated.  It must be an afterthought that he shot at the deceased in self-defence and by mistake as he was only out to scare him.  The said defence was not covered during cross-examination of the witnesses and does not sound logical.  If it were true he had a chance to escape when the deceased went into his home for his gun.  Witnesses did not disclose that the deceased had a gun and shot at him.  He just crafted a false defence after he was placed on his defence.

If he was drunk during the incident he did not state to what extent and was short of establishing that it was to a point of negating mens- rea.  The evidence of PW-1 and PW-2 shows that he knew what he was doing and was able to achieve his intention in killing the deceased.  His defence is therefore dismissed.

The upshot is that the offence of Murder is established by the prosecution, against him, beyond reasonable doubt.  He’s convicted of it under Section 203 as read with Section 204 of the Penal Code.

Judgment read and signed in the open court in presence of M/S Kiptoo, the state prosecutor, Mr. Lowasikou for the accused and the accused himself this 8th day of November, 2017.

S. M. GITHINJI

JUDGE