Republic v Tepaluk & 2 others [2024] KEHC 2246 (KLR)

Republic v Tepaluk & 2 others (Criminal Case 4 & 15 of 2020 (Consolidated)) [2024] KEHC 2246 (KLR) (6 March 2024) (Judgment)

Neutral citation: [2024] KEHC 2246 (KLR)

Republic of Kenya

In the High Court at Kapenguria

Criminal Case 4 & 15 of 2020 (Consolidated)

AC Mrima, J

March 6, 2024

Between

Republic

State

and

Michael Tepaluk

Accused

As consolidated with

Criminal Case 15 of 2020

Between

Republic

State

and

Stanley Charito Siwatum

1st Accused

Alex Piro Siwatum

2nd Accused

Judgment

Introduction: 1. This is a consolidated judgment in respect of two criminal cases. They are Criminal Case No. 4 of 2020 Republic vs. Michael Tepaluk and Criminal Case No. 15 of 2020 Stanley Charito Siwatum and Alex Piro Siwatum.

2. The two criminal cases arose from the same incident. However, the accused in Criminal Case No. 15 of 2020 were not available to be arraigned until long after Criminal Case No. 4 of 2020 had been instituted and several witnesses having testified. As such, both cases proceeded separately until judgment stage. That was why this Court opted to have a consolidated judgment.

3. All the accused were charged with the murder of one Jonathan Ripko (hereinafter referred to as ‘the deceased’) on 26th April 2020 at Kapkoris Location within West Pokot County.

4. When the accused were arraigned before this Court, they pleaded not guilty to the informations. The hearing of Criminal Case No. 4 of 2020 was conducted before three Judges. They were Hon. Sitati, J (now retired) who took the evidence of the first six prosecution witnesses. Hon. Bwonwong’a (now retired) recorded the evidence of the last prosecution witness whereas Hon. Korir, J (as he then was) who took the defence evidence.

5. The accused in Criminal Case No. 4 of 2020 tendered his sworn defence and called two witnesses. The matter was then reserved for submissions and at the same time awaiting the conclusion of Criminal Case No. 15 of 2020.

6. The hearing of Criminal Case No. 15 of 2020 was conducted before two Judges. They were Hon. Korir, J (as he then was) who took the evidence of all the seven prosecution witnesses. Yours truly recorded the defence evidence.

7. Upon closure of the prosecution case, both accused gave unsworn defenses and called one common witness.

8. This Court then gave directions on the filing, service and highlighting of the submissions. It then reserved both cases for the instant judgment.

The trials: 9. The prosecution in each case called the same 7 witnesses in a bid to establish that the accused murdered the deceased.

10. The prosecution’s case was common in both cases. It was alleged that the deceased was married to one Florence Chelagat Ripko (hereinafter referred to as ‘PW1’). They settled in Makutano and had a farm measuring about 17 Hectares in Kapkoris location registered as West Pokot/Chemwochoi/160 (hereinafter referred to as ‘the land’).

11. It was alluded that the couple had sold 4 acres of the land to PW1’s sister one Chepayuat Siwatum (did not testify) who had stayed on the land for a long period and even gave birth to two of her sons thereat. The sons were Stanley Charito Siwatum and Alex Piro Siwatum, the accused in Criminal Case No. 15 of 2020.

12. It was the prosecution’s further case that when the couple sent Surveyors to demarcate the land and to curve out Chepayuat Siwatum’s portion and also to align the boundaries with the neighbours, disputes ensued. Chepayuat Siwatum’s children demanded a further 5 acres to make a total of 9 acres. They contended that their mother had instead bought 9 acres of the land. Efforts to settle the matter amicably by the couple offering one more acre did not succeed. The dispute was subsisting.

13. The survey exercise gave rise to another dispute with the family of Michael Tepaluk, the accused in Criminal Case No. 4 of 2020. That was a boundary dispute. It was alleged that the boundary marked by the Surveyor had encroached unto Michael Tepaluk’s land. The dispute was also still subsisting despite involving the local administration in vain.

14. The couple then decided to fence their part of the land as demarcated by the Surveyor. They employed the services of casuals who put up posts round their portion of the land.

15. In the morning of 26th April 2020, the deceased left Makutano to ascertain how the works were undertaken on the land. PW1 prepared the deceased who was upbeat and full of health. According to PW1, the deceased did not have any known underlying health condition. It was only PW1 who suffered from asthma and hypertension.

16. As the deceased was on his way, he called one Alex Pkemoi Chewimbi (hereinafter referred to as ‘PW2’) whom he asked to meet him at the land.

17. It was PW2’s testimony that the deceased arrived at the land between 8:00 am and 9:00am. He was accompanied by two persons. They were Jackson Kayermit (hereinafter referred to as ‘PW3’) and Musa Kotong’ (hereinafter referred to as ‘PW4’). On inspecting the posts which had been erected along the boundary, the deceased found out that one of them had been removed. He then sent PW2 to get a jembe/hoe and one post from his home which was around 200 metres away. PW2 rushed to his home leaving the three behind.

18. As PW2 was returning to the land, around 10 minutes later, he heard people shouting and claiming that the land was theirs. He approached them. On reaching a distance of about 10 metres from where the people were, PW2 saw the three accused and the deceased. The deceased was lying down. He saw Michael Tepaluk (hereinafter referred to as ‘Michael’) and Alex Piro Siwatum (hereinafter referred to as ‘Alex’) assisting the deceased whereas Stanley Charito Siwatum (hereinafter referred to as ‘Stanley’) was administering first aid on the deceased.

19. Whereas PW2 later saw many other people gathering, he was astonished in not seeing PW3 and PW4, whom he had left them with the deceased. He retreated to his home. He then called PW1 and informed her of what he had witnessed and he also called PW4 who informed him that he ran away when people started shouting at them.

20. PW4 was also called by the deceased to meet him that morning and to proceed to the land. PW4 met the deceased who was with the Village elder, PW4. They walked to the land where they met PW2. They went around the land where they noticed that one post had been removed. PW2 was asked by the deceased to get a jembe and he left.

21. Suddenly, PW4 heard people shouting as they approached them. They were the three accused, Michael, Alex and Stanley. PW4 heard Michael shouting that if PW1 or the deceased were there, they should immediately leave. On seeing the accused charging at them, while armed with sticks, PW4 ran away for his life leaving behind the deceased and PW3. PW4 disappeared into the bushes and then headed to his home.

22. According to PW4, he had known Michael since when PW4 was born and would easily recognize his voice. Further, Michael had been PW4’s Headteacher when PW4 was in school. To him, Michael’s voice was threatening and since he was aware of the land disputes between Michael, Alex and Stanley with the deceased, he decided to run away. He learnt later that the deceased had died.

23. PW3 testified that he was a Village elder (Mkasa) for Kachikatat village in Kapkoris Location. That, he was called by the deceased in the morning of 26th April 2020 and asked to accompany him to his land. He obliged. He met PW4 on the way and PW2 at the farm. As they went around the farm, they noticed one post missing. The deceased asked PW2 to get a replacement post and a jembe. PW2 left.

24. Shortly, PW3 saw the accused running towards them. As a village elder, he was well aware of the disputes between the accused and the deceased. Each of the accused was armed with a walking stick. Stanley then ordered PW3 and PW4 to leave so that they would remain with the deceased. PW4 ran away, but PW3 declined.

25. Stanley then slapped the deceased three times and PW3 twice. They were both slapped on the left sides of their heads. Stanley then wanted to take PW3’s walking stick, but Michael restrained him urging PW3 to leave so that they would remain with the deceased.

26. Sensing eminent danger, PW3 decided to leave. The deceased pleaded with PW3 not to leave him alone, but PW3 had to run away as he was about to be attacked further. PW3 escaped to his home and did not return to the farm. He only learnt that the deceased had died on the farm.

27. No. 92956 PC Godfrey Kaguthi was the investigating officer in the cases (hereinafter referred to as ‘PW5’). He was attached to the DCI West Pokot and they operated from the Kapenguria Police Station.

28. He recalled that on 26th April 2020 he was called by the DCIO and informed of a scene of crime at Kapkoris. He accompanied other officers and proceeded to the scene. On arrival, they found the body of the deceased by the roadside near his farm. His jacket had been removed and there was an inhaler placed besides him. They removed the body to Kapenguria County Referral Hospital mortuary as PW5 began investigations.

29. He recorded witness statements and attended a post mortem examination. The autopsy was conducted by Dr. Benson Ndegwa Macharia (hereinafter referred to as ‘PW6’) at the Cherangany Nursing Home on 30th April 2020. The body of the deceased was identified by Hezron Krop Ripko (hereinafter referred to as ‘PW7’) and Enock Ripko (did not testify). PW7 was a son of the deceased.

30. Externally, PW6 found the skin peeling on the lower abdomen, right thigh on inner side, right wrist joint, right ankle joint, left ankle joint and lumber region. The lower abdomen had darkish appearance. The peeling was caused by exposure to high temperature after death. There was cyanosis on the finger nails. PW6 also found superficial bruises around the right wrist.

31. Internally, there was a bruise before the 4th and 6th ribs on the right side and another bruise just above the previous one. The iota had a lot of fat deposition. The heart was enlarged generally. The liver had congestion as a sign of long-standing hypertension.

32. There was a subarachnoid bleeding measuring 4 cm by 3 cm which was caused by elevated blood pressure and not any trauma. Similar bleeding was on both the right and left side of the brain. There was a 2 cm bleed within the brain substance and the brain had mild flattening which compression was caused by pressure in the brain.

33. PW6 opined that the cause of death was sudden cardiac arrest due to hypertensive heart disease with chest blunt force trauma contributing to the death. He also explained that the superficial bruise on the right wrist joint came before death as a result of blunt trauma as well as the injuries on the respiratory system. It meant that there was blunt trauma before death.

34. It was further explained by PW6 that it was possible that the deceased lived with hypertension without knowing until when the pressure shot up and caused pressure in the brain, thereby resulting to a sudden cardiac death. That was evidenced by the bruises which meant that the trigger elevated the pressure which resulted to sudden death. A chest trauma by blunt force could also be a trigger and also hot arguments.

35. On completion of investigations, PW5 recommended that the accused be charged with the murder of the deceased. He managed to arrest Michael and charged him while Alex and Stanley were at large. They were arrested after several months and were also charged.

36. With the foregoing evidence, the prosecution closed its case in both matters.

37. The trial Courts delivered their respective rulings and found that the prosecution had established prima-facie cases against all the accused. The accused were placed on their defenses.

38. Michael tendered a sworn defence and called two witnesses. They were Evans Ruto (hereinafter referred to as ‘Evans’) and Michael’s brother one Adril Yator (hereinafter referred to as ‘Yator’).

39. Stanley and Alex gave unsworn defenses. They called Evans as their common witness.

40. The accused denied the offences. Michael stated that his land bordered that of that of the deceased and that they had a boundary dispute. He, however, stated that the dispute was resolved when a Surveyor was called and the boundary was established. He further stated that his brother’s land also bordered that of the deceased. The brother was Yator. That, he heard noises coming from the direction of Yator’s land as if people were quarrelling. He proceeded there only to meet the deceased with PW3, Stanley and Evans. That, PW3 and Stanley were exchanging words and Michael watched them and asked PW3 to stop the quarrel. Michael suddenly saw the deceased fall down.

41. Michael was aware that the deceased had a breathing problem and saw the deceased remove an inhaler from his pocket. Michael assisted the deceased to use the inhaler. A lot of people gathered and Michael never witnessed any one assault the deceased.

42. It was Michael’s position that the deceased was not killed, but died of hypertension as confirmed by the Pathologist, PW6.

43. Evans testified as a witness for all the accused. When testifying for Michael in Criminal Case No. 4 of 2020, he stated that he was on his way to buy sugar as he walked behind Stanley who was from his farm. On reaching the Church, he met the deceased, PW3 and PW4 standing besides the road. That, Stanley greeted them and PW3, who was drunk, began quarrelling Stanley telling him that his house would be demolished by the Government. That, Evans also greeted them and shook hands as PW3 kept on quarrelling Stanley as the deceased was restraining PW3 from doing so. According to Evans, Michael was not present at that time, but came running much later. When Michael arrived, he restrained Stanley from engaging PW3.

44. It was Evan’s further evidence that the altercation stopped and PW4 left. That, he did not witness any one assault the deceased and that he was present when the deceased died, after the deceased collapsed. Evans confirmed that Michael was present when the deceased collapsed and fell down. That, the deceased removed an inhaler and wanted to be assisted. Michael did so. Stanley joined Michael in administering first aid to the deceased.

45. Evans had known the deceased and was aware that the deceased was hypertensive. He also conformed that the deceased was not killed.

46. Yator was the second witness for Michael. He was a teacher at Kapron Primary School and was a brother to Michael.

47. He stated that on the fateful day, as he was at his home, he heard people quarrelling by the roadside which was around 50 metres from his home. That, he rushed and found Stanley, Michael, Evans PW3 and PW4. He followed Michael as they proceeded to the scene. That, Stanley and PW3 were arguing and Michael intervened and asked Stanley not to argue with a drunkard. According to Yator, Michael and Stanley neither engaged the deceased nor beat him. He was present when the deceased fell down.

48. Yator was also aware that the boundary dispute between the deceased and Michael had been resolved.

49. In his unsworn defense, Stanley testified that as he was on his way back to his home, he found the deceased with PW3 and PW4 and suddenly the deceased fell down. Stanley knew that the deceased was hypertensive as he had lived with him for long. That, he assisted the deceased who wanted to use an inhaler and the deceased peed on himself. They undressed him and administered first aid. They carried him to a place where there was some sunlight. His brother Michael then arrived.

50. Efforts to rush the deceased to hospital were futile and the deceased died. Police were informed and visited the scene and collected the body of the deceased. That, he remained home for a month and overheard that the police were looking for him and he presented himself to the police.

51. Stanley denied that PW3 was not a village elder.

52. Alex also tendered an unsworn defense. He stated that on the fateful day, his brother Stanley asked him to assist him plant trees on his farm, but he was busy and promised to accompany him the following day. As he went to take his milk to the market, he heard some noise from the Church and he rushed there. He saw the deceased lying down and he assisted in administering first aid. He then left to the market only to be later called by Stanley and informed that the deceased had died. He was surprised of the occurrence.

53. Evans was a common witness to Stanley and Alex. He stated that as he was on his way from buying sugar from the Kapkom market, he met Stanley who was from his farm walking home. That, Stanley was ahead of him by around 50 metres and walked in the same direction. He then came across some people who were administering first aid to the deceased.

54. It was Evan’s further evidence that the first aid was successful and the deceased was restored to life. He then saw Alex arrive at the scene carrying milk and who immediately left to the market. As the deceased had recovered, Evans then left only to learn later that the deceased had died. He did not return to the scene and only watched from a distance as the body of the deceased was collected by the police.

55. Evans confirmed during cross-examination that when he arrived at the scene the deceased had already fallen down and that he did not know what caused him to collapse.

56. At the close of the defense cases, parties filed rival written submissions. Each buttressed its case and referred to several authorities. While the prosecution urged this Court to find that the charges were properly proved in law, the accused contended that none of the charges was proved.

Analysis: 57. In criminal cases, for the Prosecution to secure a conviction on the charge of murder, it has to prove three ingredients against an Accused person. The Court of Appeal at Nyeri in Criminal Appeal No. 352 of 2012 Anthony Ndegwa Ngari vs. Republic [2014] eKLR, summed up the elements of the offence of murder as follows: -(a)the proof and cause death of death of the deceased;(b)that the accused committed the unlawful act which caused the death of the deceased; and(c)that the accused had malice aforethought.

58. This discussion shall now endeavor to interrogate the above ingredients against the evidence on record.

The death of the deceased: 59. There are several ways in which the death of a person may be proved. In some instances, deaths may be presumed. (See Section 118A of the Evidence Act, Cap. 80 of the Laws of Kenya).

60. In this case, the death of the deceased was proved in two ways. First, there are several witnesses who vouched that they saw the deceased collapse and die. There was also PW7 who witnessed the autopsy of the deceased, his father.

61. The second way in which the death of the deceased was proved was through the contents of the Post Mortem Report which was produced by PW6.

62. In the report, PW6 explained in length how the deceased met his death. Whereas he confirmed that the deceased was hypertensive and died as a result of a cardiac arrest, he affirmed that he found superficial bruises around the right wrist, that there was a bruise before the 4th and 6th ribs on the right side and another bruise just above the previous one. He stated that there was also chest blunt force trauma which contributed to the death. PW6 further explained that the superficial bruise on the right wrist joint came before death as a result of blunt trauma as well as the injuries on respiratory system.

63. According to PW6, it was possible that the deceased lived with hypertension without knowing until when the pressure shot up and caused pressure in the brain, thereby resulting to a sudden cardiac death. That was evidenced by the bruises which meant that the trigger elevated the pressure which resulted to sudden death. A chest trauma by blunt force could also be a trigger and also hot arguments.

64. The medical evidence was not challenged. This Court, therefore, finds that the deceased died and the cause of the death was a sudden cardiac arrest which was caused by elevated pressure resulting from assault and hot arguments.

Whether the accused committed the unlawful act which caused the death of the deceased: 65. In this matter, PW2, PW3 and PW4 testified on what happened at the farm of the deceased. PW2 left before any fracas arose. PW3 and PW4 witnessed Michael, Stanley and Alex charge towards them while carring walking sticks as they were at the deceased’s farm. PW4 feared the threats by Michael and the way they were approaching them and since he knew of the prevailing land sisputes, he ran away before the trio arrived. He left the deceased and PW3 behind.

66. According to PW3, when the accused arrived, Stanley ordered PW3 to leave. PW3 did not. Stanley then slapped PW3 twice on the head as he also slapped the deceased thrice on the head. Sensing eminent danger, PW3 ran away as the deceased was pleading with him not to leave him behind. PW3 left the accused with the deceased.

67. As PW2 was returning to the deceased’s farm with a jembe and a pole to replace the pole which had been removed, he was surprised to see that PW3 and PW4 were missing and the deceased was lying down. He also saw the three accused with the deceased. He decided not to go there and retreated.

68. Michael confirmed that when he reached at the scene he saw PW3, Stanley, Evans and the deceased. It is, therefore, true that PW4 had left before Michael arrived at the scene.

69. In his unsworn testimony, Stanley stated that as he was on reaching at the scene, he found the deceased with PW3 and PW4 and suddenly the deceased fell down. That, Michael came later.

70. According to Alex, when he reached at the scene, he saw the deceased lying down and he also assisted in administering first aid on him. That, he then left to the market only to be later called by Stanley and informed that the deceased had died.

71. The foregoing evidence of the three accused does not add up as to who was at the scene when each of them arrived. According to Michael, it was PW3, Stanley, Evans and the deceased who were at the scene when he arrived. According to Stanley, on arrival he found the deceased with PW3 and PW4. And, according to Alex, on arrival, he found the deceased having fallen on the ground. In his testimony, Alex did not disclose the names of those he found with the deceased.

72. With that state of affairs, then comes the evidence of Evans. When he testified as a witness for Michael in Criminal Case No. 4 of 2020, Evans stated that he met the deceased, PW3 and PW4 standing beside the road and that Stanley was quarrelling with PW3. Michael then came in much later. The deceased then just collapsed in their presence.

73. However, when the very Evans was testifying as a common witness for Stanley and Alex in Criminal Case No. 15 of 2020, he stated that when he arrived at the scene he found the deceased having already collapsed and the people were administering first aid and that the deceased was successfully resuscitated. Evans then saw Alex arrive and that Alex left to the market. That, when the deceased had regained consciousness, Evans left, only to later learn that the deceased had died.

74. Yator also testified in Criminal Case No. 4 of 2020. It was his testimony that he found Stanley, Michael, Evans, PW3, PW4 and the deceased at the scene. He then witnessed the deceased collapse.

75. The evidence of Michael, Stanley, Alex, Evans and Yator is highly contradictory on who exactly was at the scene with the deceased. The testimony of Evans was at total variance when he testified in Criminal Case No. 4 of 2020 and when he testified in Criminal Case No. 15 of 2020. Such a conflicting scenario is impossible to reconcile if a witness is truthful since one cannot have two rival versions of who were at the scene at the same time.

76. The evidence of Michael, Evans (in Criminal Case No. 4 of 2020) and Yator corroborated that of PW2, PW3 and PW4 to the extent that Michael, Stanley and Alex were at the scene with the deceased before he died. This Court, therefore, affirms that position.

77. As PW3 left the scene, the deceased was alive. He left him in the hands of Michael, Stanley and Alex. PW2 confirmed seeing the accused with the deceased after PW3 and PW4 had left.

78. The deceased, therefore, collapsed in the presence of Michael, Stanley and Alex. The trio then sought to administer first aid, but were unsuccessful. The deceased passed on.

79. As PW6 confirmed that the cause of the death of the deceased was a sudden cardiac arrest which was caused by elevated pressure resulting from assault and hot arguments, and since there was evidence that Stanley assaulted the deceased in the presence of PW3 before PW3 left the deceased in the company of the three accused, this Court finds that the rest of the external injuries must have inflicted by the three accused. This Court further finds that the internal injuries that were caused by the elevated pressure leading to the cardiac arrest were triggered by the accused who were armed with sticks, chased away PW3 and PW4 and demanded to be left with the deceased.

80. From the above factual disclosure, this Court’s attention is drawn to the doctrine of common intention as defined under Section 21 of the Penal Code. The provision states as follows: -When two or more persons from a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.

81. The Court of Appeal for Eastern Africa in Wanjiru d/o Wamerio versus Republic 22 EACA 521 as follows: -Common intention generally implies premeditated plan, but this does not rule out the possibility of a common intention developing in the course of events though it might not have been present to start with.

82. The ingredients of common intention were enunciated in Eunice Musenya Ndui versus Republic, Criminal Appeal No. 534 of 2010 (2011) eKLR as follows: -(1)There must be two or more persons;(2)The persons must form a common intention;(3)The common intention must be towards prosecuting an unlawful purpose in conjunction with one another;(4)An offence must be committed in the process;(5)The offence must be of such a nature that its commission was a probable consequence of the prosecution of the unlawful purpose.

83. In Njoroge versus Republic 1983 KLR 197 and Solomon Munga versus Republic 1965 EA 363, both Courts had the following to say of the elements of the doctrine of common intention: -If several persons combine for an unlawful purpose and one of them kills a man, it is murder in all who are present whether they factually aided or abated or not, provided that the death was caused by act of someone of the party in the course of the endeavours to effect the common object of the assembly.

84. It is evident that the accused were all armed with sticks when they confronted the deceased. PW4 feared any possible confrontation and ran away. PW2 saw the way the accused were armed and the deceased was lying down and also went away. The accused demanded to be left alone with the deceased and as such, chased away PW3 after assaulting him.

85. The cumulative effect of the actions of the accused is that they were all responsible for what befell the deceased.

86. In sum, the accused jointly caused the death of the accused.

Whether there was malice aforethought: 87. The Court will now consider whether the accused acted with malice aforethought in causing the death of the deceased.

88. Section 206 of the Penal Code defines 'malice aforethought' as follows: -206. Malice aforethought shall be 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 or omission to facilitate the fight or escape from custody of any person who has committed or attempted to commit a felony.

89. The Court of Appeal has also dealt with the issue of malice aforethought on several occasions.

90. In Joseph Kimani Njau vs Republic (2014) eKLR, the Court of Appeal in concurring with an earlier finding of that Court (but differently constituted) in Nzuki vs Republic (1993) KLR 171, held as follows: -Before an act can be murder, it must be aimed at someone and in addition, it must be an act committed with one of the following intentions, the test of which is always subjective to the actual accused; -i.The intention to cause death;ii.The intention to cause grievous bodily harm;iii.Where the accused knows that there is a serious risk that death or grievous bodily harm will ensue from his acts, and commits those acts deliberately and without lawful excuse with the intention to expose a potential victim to that risk as the result of those acts.It does not matter in such circumstances whether the accused desires those consequences to ensue or not in none of these cases does it matter that the act and intention were aimed at a potential victim other than the one succumbed The mere fact that the accused’s conduct is done in the knowledge that grievous harm is likely or highly likely to ensue from his conduct is not by itself enough to convert a homicide into a crime of murder. (See Hyman vs. Director of Public Prosecutions (1975) AC 55”. (emphasis added).

91. Malice aforethought can be established expressly or by inferences to be drawn from the facts and circumstances before Court. The East African Court of Appeal explicated the circumstances in which malice aforethought can be inferred in the case of Republic vs. Tubere s/o Ochen [1945] 12 EACA 63 as follows: -a.The nature of the weapon used; whether lethal or not;b.The part of the body targeted; whether vulnerable or not;c.The manner in which the weapon is used; whether repeatedly or not;d.The conduct of the accused before, during and after the attack.

92. It was the evidence of PW1 and PW7, who were the wife and son of the deceased respectively, that they did not know that the deceased was hypertensive. However, Michael, Stanley, Alex and Evans all knew that the deceased was both hypertensive and asthmatic. PW6, the Pathologist, noted that the deceased was only hypertensive and not asthmatic.

93. Be that as it may, if the accused were well aware of the deceased’s health condition, they ought to have known how well to deal with him. They ought not to have instead confronted the deceased with physical assault and threats. In dealing with the deceased with clear knowledge of this ill-health, the accused only targeted to cause unpleasant consequences to him.

94. The accused, therefore, purposed to harm the deceased. The manner of execution of their mission was very deliberate and targeted.

95. By considering the cumulative actions of the accused in the manner he executed the killing, it is without any shred of doubt that the accused, with common intention, purposed to kill the deceased.

96. The prosecution, therefore, proved malice aforethought in this case.

Disposition: 97. The above analysis has it that the prosecution was successful in proving that the three accused jointly caused the death of the deceased.

98. In the premises, this Court finds and hold that the prosecution proved the information of Murder contrary to Section 203 as read with Section 204 of the Penal Code as against all the accused in this case.

99. Each of the accused herein, Michael Tepaluk, Stanley Charito Siwatum and Alex Piro Siwatum is accordingly found guilty and convicted of Murder pursuant to Section 322(2) of the Criminal Procedure Code.

100. Orders accordingly.

DELIVERED, DATED AND SIGNED AT KAPENGURIA THIS 6TH DAY OF MARCH, 2024. A. C. MRIMAJUDGEJUDGMENT DELIVERED VIRTUALLY IN THE PRESENCE OF:Mr. Chebii, Learned Counsel for the Accused.Miss. Sugut, Learned Counsel watching brief for the victim’s family.Mr. Majale, Learned Prosecutor instructed by the Office of the Director of Public Prosecutions, the State.Juma/Hellen – Court Assistants.