Republic v Kibet Kapsengei [2015] KEHC 3079 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KITALE

CRIMINAL CASE NO. 20 OF 2011

REPUBLIC …................................................................PROSEC UTOR

VERSUS

KIBET KAPSENGEI ….........................................................  ACCUSED

R   U   L   I   N   G

1. The accused, Walter Kibet Kapsegei, was charged with murder,   contrary to S. 203 read with S. 204 of the Penal code, In that on   18th October 2007 at Cheptumbelio Farm in Kisawai Location,   Trans-Nzoia County, jointly with another not before court, murdered Joseph Rubia Chemengich.

2. The case for the prosecution was that the deceased was husband to Joan Chesang Mochumu(PW1), and the Chief of Kisawai Location.   Prior to the material 18th October 2007, he expressed fear for his life and was cautioned by his mother not to return to a meeting (Baraza) on his own.  He nonetheless went to the meeting but did not return home.  It was later reported that he had been killed.

3. James Bitai Naibei(PW2) and Humphrey Chemengich (PW3), identified the body of the deceased for Post Mortem purposes. They indicated that he was murdered at a farm belonging to one M/S Kamau by being shot with a firearm.

C.I.P Henry Ndzuma (PW4), was on the 3rd October 2011, requested to record a confession on the murder from the accused who presented himself at Cheranganyi Police Station and owed himself up.

4. In the confession , the accused indicated that he was a member of the Sabaot Land Defence Force (SLDF) and that he and others ambushed and killed the deceased since he was responsible for giving information to the authorities about the group.

Sgt David Makau (PW5) opened an investigations file on the material 18th October 2007, after receiving the report that the deceased had been shot dead.  Years later, the accused presented himself and confessed to the murder saying that it was prompted by a land dispute.  He was eventually charged with the present offence.

5. From all the foregoing evidence, it was clear that neither direct nor     circumstantial evidence was availed to link the accused to the  murder of the deceased.  The only evidence against him was his  alleged confession to the murder.   However, the confession (PMFI   – 1) was after a trial within a trial found to be inadmissable   meaning that there wasn't even a scintilla of evidence remaining   against the accused.

6. A prima -facie case being one in which a reasonable court directing its mind to the law and evidence before it may convict if    no explanation is offered by the defence, it would follow that the  evidence adduced herein against the accused was insufficient for purpose of establishing the necessary ingredients of the charge  against the accused and hence, a prima – facie case.

7. It is therefore the finding of this court that the accused has no case to answer and calling upon him to make his defence would be  tantamount to asking him to fill the gaps left wide upon by the  prosecution.  Accordingly, he is acquitted by dint of S.210 of the Criminal Procedure code.

J. R. KARANJA

JUDGE

( Read and Signed this 1st day of July 2015)