Republic v Pauline Cheptoiyo [2017] KEHC 167 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAKURU

CRIMINAL CASE NO. 97 OF 2014

REPUBLIC.................................................STATE

VERSUS

PAULINE CHEPTOIYO....................ACCUSED

RULING

The accused PAULINE CHEPTOIYO faces a charge of MURDER CONTRARY TO SECTION 203 as read with SECTION 204 OF THE PENAL CODE. The particulars of the charge were that

“On the 23rd day of September, 2014 at Ngenyilel Village, Marigat District of Baringo County, murdered ABRAHAM LOMATI”

The accused pleaded ‘Not Guilty’ to the charge and her trial commenced before me on 11/4/2017. The prosecution led by the learned State Counsel called a total of three (3) witnesses before closing their case. This court must now analyze the evidence on record and make a determination as to whether the prosecution have established a prima facie case.

PW2 DR. TITUS NGULUNGU a consultant pathologist based at PGH gave evidence regarding the autopsy which was conducted upon the body of the deceased. The body which was partially decomposed at the time of examination was found to have a deep cut to the back of the neck with skull fracture. The cause of death was opined to be ‘a deep posterior neck cut wound caused by a sharp object’. The duly filled and signed post-mortem report was produced in court as an exhibit.

Having proved the cause of death the prosecution was required to tender evidence sufficient to prove that it was the accused who by an unlawful act or omission caused the death of the deceased.

The evidence from the doctor indicates that the deceased died due to a deep cut to the back of his neck. There is no witness who saw any person much less the accused cut the deceased. No evidence has been tendered to show how the deceased sustained this fatal injury.

PW1 APC SIMON KIMOSO BARASA was an AP Officer who went and re-arrested the accused from her home, where she had been tied up by a group of angry villagers. PW1 had no evidence of what offence the accused had committed. All he told the court is that he noted signs of a struggle in the house. None of the ‘angry villagers’ who were at the scene testified in court to explain why they were angry or why they had tied up the accused.

PW3 CORPORAL NYANGWE told the court that although he was not the investigating officer he was familiar with the case. However PW3 was only able to tell the court that the accused was the wife of the deceased. PW3 stated that

“It was said that the deceased had been killed by his wife one Pauline Cheptoiyo”

PW3 did not himself witness the attack upon the deceased. His evidence therefore remains hearsay evidence

which is not admissible as against the accused. PW3 told the court that a blood stained panga was recovered at the scene which panga was taken to the police station. However the said panga (a crucial exhibit) was not produced before the court. Neither was the said panga taken for analysis in order to determine the source of the blood on it. This failure to produce and examine the panga greatly weakened the prosecution case.

On the whole I find the prosecution case to be woefully inadequate. There is no evidence to link the accused to the fatal assault on the deceased. The evidence against her is pure conjecture and hearsay. I find that no prima facie case has been established. As such I enter a verdict of ‘Not Guilty’and I acquit the accused of this charge of murder.

The accused is to be set at liberty forthwith unless she is otherwise lawfully held.

Dated in Nakuru this 6th day of October, 2017.

Mr. Chemgetich for accused.

Maureen A. Odero

Judge