Republic v Philip Kerich [2014] KEHC 3687 (KLR)

IN THE HIGH COURT OF KENYA

AT NAKURU

CRIMINAL CASE NO. 57 OF 2012

REPUBLIC……………………PROSECUTOR

VERSUS

PHILIP KERICH…………………..ACCUSED

JUDGMENT

Philip Kerich, the accused, is charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code.  It is alleged that on 23/7/2012, at Tatakala Village in Narok, he murdered Richard Rotich (deceased).  He denied committing the offence.  The prosecution called a total of 7 witnesses in support of their case.  Accused, when called upon to enter his defence gave a sworn defence but did not call any other witness.

PW1, Lemaidok Ole Saoli, a farmer at Katakala Narok, knew both the accused and the deceased.  He testified that accused was a watchman at his cousin’s farm while the deceased, Richard Rotich was an employee in the same farm of his cousin, Jonathan Saoli.  On 22/2/2012, he saw accused and deceased at about 8. 00 p.m. as they passed by his house going to where they lived.  He said that they lived in a camp at their place of work.  Next morning when coming from his farm he found the accused washing his ear which had blood and upon PW1 enquiring what happened, accused claimed he was attacked by robbers who included the deceased, Richard.  PW1 was surprised that Richard who he knew so well could rob somebody.  He also informed the employer about the accused having been robbed.  He did not see Richard that day and on 24/7/2012, one Tankus informed him that he had seen somebody lying somewhere in the camp.  PW1 went to the scene and found it was Richard who was dead, with an injury on the back of the neck.  He went to arrest accused from the farm and handed over to police.  He went with police to the scene who collected the deceased’s body and took to the mortuary.

PW3, Julius Kimutai Langat, knew the accused and deceased.  He used to work with both accused and deceased in the same farm.  He recalled that on 21/7/2012 at about 11. 00 p.m. he was asleep in his house when he heard footsteps of people chasing each other outside.  He heard accused say, ‘he had been slashed on the ear.’  He recognized the voice as that of accused whom he knew well.  The said people seemed to be chasing each other round the house.  He did not get out of the house.  He went to work next day but deceased did not report to work.  He learnt that he had been killed, went to the scene and saw the deceased had an injury to the neck.  He denied having asked accused why he was being chased or who chased him.  He saw the accused injured on the ear.

PW4, Daniel Kipng’eno Arap Towet, was a workmate of both accused and deceased.  He said that on 22/7/2012, accused woke him up about 6. 00 a.m. and told him that he had been slashed on the ear by Richard.  He was with deceased’s brother, Johana, and he did see the injured ear.  PW4, Johana and others went out to look for Richard but did not find him.  Richard was not found the whole day and they believed he had escaped for what he had done but on calling his home found he had not arrived there.  Next day, when on the parade, somebody by name Daniel Tangus informed them that he had found Richard’s body in the camp.  PW4 said he asked accused for his panga which was found under the bed of Muriuki who used to share a house with accused.  He handed the panga to their manager.

PW5,Wesley Mutai, was also a workmate of accused and deceased.  They worked for the same company.  He recalled that on 21/7/2012 at about 11. 00 p.m. he was asleep in his brother’s house when he heard the accused wake his brother up.  His brother was away so he opened the door and accused informed him that Richard had stabbed him on the ear and he saw blood on the ear and head.  Accused left, but came back later to ask for water which PW5 gave him.  He denied that accused had a weapon.

PW6, Cpl Charles Kiprono Rotich, is a gazetted Scenes of Crime Officer.  He produced the photographs and report prepared by PC Kiboma who visited the scene and took photographs on 23/7/2012.  At the time of testifying, Cpl Kiboma was admitted in hospital.

The investigation officer herein is Cpl Joseph Njunge Kabete (PW7).  On 23/7/2012, when he was assigned investigation of this case, accused was already in cells.  He recorded statements.  He saw deceased’s body which had a deep cut on back of the head.  A panga was handed over to him by an employee but it had no blood stains.

The post mortem was conducted by PW2, Dr. Titus Ngulungu.  He found the body to be decomposing, it had injuries to the neck and occipital fracture to the head.  He formed the opinion that the cause of death was massive haemorrhage and injury to medulla oblongata and spinal code due to a sharp object.

Accused stated on oath that he was at work on 21/7/2012, was attacked by 4 Maasais whom he did not know.  They called him and when he came out, they stabbed him with a stick on the ear.  He fell and one asked for Richard.  That Saoli, PW1 was one of the 4 in whose house he had drunk alcohol that day with accused.  He got up and ran to where other watchmen were i.e. Rotich.  He went to Wesley, PW5’s house and informed him that 4 Maasai were looking for Richard.  He later went back to work.  On 22/7/2013, he went to see Tankus who told him that they look for Richard.  He looked for Richard with other people but he was not found till 23/7/2012 when he was arrested because he had a scar.  He denied killing Richard.

Having considered all the prosecution and defence evidence there is no doubt that nobody witnessed the murder of the deceased.  This case therefore turns on circumstantial evidence.  The law is settled as to when circumstantial evidence can be relied upon to found a conviction.  In the case of Omar Chimera v Rep CRA 56/1998, the court stated:-

“It is settled law that when a case rests entirely on circumstantial evidence, such evidence must satisfy three tests;

These circumstances should be of a definite tendency unerringly pointing toward the guilt of the accused;

These circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else.”

See also R v Kipkering Arap Koske & Another (1949) 16 EACA 15.

In the instant case, there is no doubt that the accused and deceased worked for the same company.  The accused worked as a watchman while the deceased worked in the farm.  They lived in the same camp at their place of work.  These are facts that are not disputed.

Accused stated in his defence that he had seen the deceased at the place they were drinking on the evening of 21/7/2012.  He said PW1’s house.  PW1, however, told the court that he saw accused and deceased pass by his house at about 8. 00 p.m. on the evening before the deceased disappeared.  However, in cross examination, PW1, admitted that he never told the police that he saw accused and deceased pass by his house while conversing.  PW1 went on to tell the court that the next day, he found the accused washing his ear which was bleeding and he claimed to have been attacked by thugs who included Richard, the deceased.

PW4 told the court that on 22/7/2012 at 6. 00 a.m., accused woke him up and told him how Richard, the deceased, had injured him on the ear PW4 said they went in search of the said Richard but did not find him.  PW5 too told the court that on 21/7/2012 about 11. 00 p.m., accused woke him up and informed him that Richard had injured him on the ear.  PW3 on his part told the court that on the night of 21/7/2012 he heard people chasing each other around the house and heard accused tell somebody that he had cut his ear.  The accused on the other hand claims it is PW1 and other Maasais who attacked and stabbed him.  There is no doubt that accused was injured on the ear on the said night.

Having considered the evidence of the four prosecution witnesses, I believe that accused told PW4 and PW5 about deceased having stabbed him and that goes to corroborate PW1’s evidence that he had seen accused and deceased walking towards their house on the night that deceased went missing.  I find that on the night of 21/7/2012, accused was in company of deceased.  Accused also admitted that he went to PW5’s house that night.  I doubt that all these witnesses made up this evidence against accused.

Accused in his defence at first claimed that he was attacked by four Maasai he did not know, however, later in the defence he changed and said it was Saoli (PW1) who was with 3 other Maasais and that PW1 who even asked for Richard.  However, this court finds that defence to be an afterthought because PW1 was cross examined at length and there was no suggestion that he is the one who attacked accused on that night or that PW1 asked for Richard that fateful night.  I prefer the testimonies of the four prosecution witnesses and find that accused was with the deceased on the evening and night of 21/7/2012 and they must have disagreed as a result of which accused was inured on the ear.

The deceased’s body was not found till about 2 days after his disappearance.  It was found on 23/7/2012.  Having found that accused was in company of the with deceased on the fateful night, under Section 111 of the Evidence Act, a reasonable presumption arises that the accused knew what happened to the deceased and has a duty to give a plausible explanation as to what happened to the deceased.  That in no way shifts the burden of proof from the prosecution to prove their case beyond any doubt.  In the instant case, the accused has not offered any explanation as to what happened between him and deceased.  Instead he purported to shift attention to PW1 and blame him for his injuries.  This court does not believe the accused’s defence.  I find that there is overwhelming circumstantial evidence that accused was with deceased on the night of 21/7/2012, they seem to have disagreed and the deceased injured  accused on the ear and accused informed PW4 and PW5 about it.  Accused is the one who must have inflicted the fatal blow to the deceased.

The post mortem disclosed that the deceased sustained a fracture at the base of the occipital (back of neck) and cause of death was found to be massive haemorrhage due to sharp force to the back of the neck.  It seems the deceased received serious injuries from one single injury inflicted by a sharp object.

There is sufficient evidence on recored that accused and deceased had some fight or quarrel on the fateful night whereby the accused received a minor injury to the ear.  The said injury was not serious because accused did not go to hospital or report to police.  I am satisfied that the circumstantial evidence does point at accused as the one who inflicted the fatal injury to the deceased and no one else.  However, this court cannot tell who was the aggressor or how it all started.  There is evidence that both had been drinking alcohol together.  In my view, malice aforethought is not proved.  Having found that there was a fight or scuffle where accused was slightly injured,  I will find that accused used excessive force on the deceased and unlawfully caused his death.  I will therefore find him guilty of a lesser charge of manslaughter contrary to Section 202of the Penal Code and convict him accordingly.

DATED and DELIVERED this 4th day of July, 2014.

R.P.V. WENDOH

JUDGE

PRESENT:

Mr. Chirchir for the State

Ms Omondi for the accused

Mr. Mutai – Interpreter – English/Kipsigis

Kennedy – Court Assistant