Republic v Toroitich [2022] KEHC 10068 (KLR) | Murder | Esheria

Republic v Toroitich [2022] KEHC 10068 (KLR)

Full Case Text

Republic v Toroitich (Criminal Case 85 of 2017) [2022] KEHC 10068 (KLR) (21 July 2022) (Judgment)

Neutral citation: [2022] KEHC 10068 (KLR)

Republic of Kenya

In the High Court at Kabarnet

Criminal Case 85 of 2017

WK Korir, J

July 21, 2022

Between

Republic

Prosecution

and

Joshua Korir Toroitich

Accused

Judgment

1. Joshua Korir Toroitich, the accused herein, has been charged with murder contrary to Section 203 as read with Section 204 of the Penal Code. It is stated that on 17th January, 2013 at Seguton Centre in Eldama Ravine Sub-County the accused murdered Edward Kiptanui Serem.

2. The accused pleaded not guilty to the charge and the matter was set down for full trial where the prosecution called 4 witnesses. The accused testified in his defence as DW1.

3. PW1 Job Kipngetich Taribo told the Court that the deceased Edward Kiptanui Serem was his brother’s son. The witness stated that on 17th February, 2013 at 3. 00pm he was at Seguton Primary School where they were waiting for materials for election of candidates of a political party. Shortly, he saw people running towards Seguton Centre which was a short distance away and he followed them. At the shops, he found the deceased lying in a trench besides the road. He also saw an administration police officer next to the deceased. The police officer who was known to him picked a knife which was nearby and left with it. Police officers led by the OCS later arrived and collected the body of the deceased.

4. On cross-examination, PW1 stated that he found the deceased already beaten and saw a knife by his side. He stated that he did not see the deceased with the knife but he heard that he had the knife. He stated that there were four police officers at the scene and Korir (the accused) is the one who took the knife. PW1 stated that the knife did not have blood on it. The witness told the Court that the accused’s jacket was torn and he heard people said it was cut by a knife. The witness concluded by stating that the rifle was only fired once.

5. PW2 Francis Kipsang testified that on 17th February, 2013 between 10. 00am and 11. 00am he was at the entrance of Seguton Primary School where he was going to vote. His evidence is that the deceased who was his son fought with another person at a pool game. Three police officers went to assist the deceased who ran towards home. One police officer chased him as the other two followed them. PW2 stated that the deceased stabbed the police officer three to four times. The deceased was asked to throw away the knife and after he did so, he heard a gunshot from the police officer who was lying on the ground. The witness testified that members of the public wanted to beat the police officer and he ran away. He also stated that the knife that the deceased had was taken away by the police officers.

6. In response to questions put to him by the defence counsel, PW2 stated that the deceased was drunk when he fought with other young men where they were playing pool. He told the Court that the deceased had an injury on the head. The witness stated that the police officers came from the polling station to find out what was happening as the deceased was screaming and wanted to go back to the pool room where he had been beaten. PW2 stated that after the accused reached the deceased, the deceased tried to stab him. The deceased eventually overpowered the accused and that is when he heard the gunshot. His evidence was that the deceased was shot on the shoulder and he died on the spot. The witness told the Court that the deceased was a violent person. He identified torn police uniform that the accused was wearing on the date of the incident.

7. When re-examined by the prosecutor, PW1 testified that he saw the deceased throw away the knife and later heard the gunshot.

8. Stanley Chemususu who testified as PW3 told the Court that on a date he could not recall in 2013 he attended post-mortem on the body of the deceased who was his cousin. His testimony was that during the post-mortem it was established that the deceased died as a result of a bullet injury.

9. PW4 Joseph Korogei Muge told the Court that he was a retired administration police commander. On 17th February, 2013 he was providing security during the nominations of a political party. He was with the accused and other police officers. When they reached Seguton Centre, members of the public approached them and informed them that a person who was armed with a knife was threatening to stab somebody.

10. PW4 testified that he tasked the accused and two other officers to go and check on the matter and proceeded to the polling centre. While there, he heard people shout that someone had been killed. He proceeded to the shops and found people had become riotous threatening to attack the police officer who had allegedly killed the deceased. PW4 directed the police officer to proceed to Timboroa Police Station. He called the DC and the OCPD to the scene and they managed to calm the crowd. The witness testified that the body was removed from the scene and the matter taken over by the DCIO. He identified the accused as the officer he had sent to find out what was happening after receiving the report of members of the public.

11. During cross-examination, PW4 stated that the police officers were armed and in uniform. Further, that he did not investigate the circumstances under which the deceased was shot.

12. When placed on his defence, the accused gave sworn testimony as DW1 and stated that on 17th January, 2013 they were providing security coverage for elections of a political party. In the course of the foot patrol they met their boss, PW4, who instructed them to join him in his vehicle. When they reached Seguton, a report was made to their boss about an incident at the shopping centre. PW4 instructed them to go and find out what was happening.

13. The accused stated that when they reached the shopping centre he separated from his two colleagues. Shortly, he saw a man being chased by another who was armed with a knife. He followed them and ordered the man with the knife to stop. As he neared the big and tall man, he stopped, turned back and starting charging towards him. All along the man was swinging the knife as he tried to cut him. The accused testified that he used his gun to ward off the knife. The accused stated that he tried retreating and he slipped into a ditch. The man kept advancing towards him.

14. According to the accused, he grabbed the hand that was holding the knife and the man in turn grabbed his rifle. It was then that he released the deceased and tried to pull away the rifle. At this juncture the deceased had also fallen down. As they struggled over the gun, he accidentally pulled the trigger and shot the deceased on the chest. His colleagues came after hearing the gunshot. According to the accused, the deceased was stronger than him. Further, that during the struggle, the members of the public who were present only kept shouting without going to his aid. The accused identified the torn uniform he was wearing on the date of the incident and informed the Court that it was the deceased who cut the uniform as he attempted to stab him with a knife.

15. During cross-examination the accused stated he had already cocked his firearm and the bullet ejected accidentally as he was pulling the gun from the deceased. His testimony was that he was the only one with the deceased when the struggle started.

16. Upon re-examination, the accused stated that he was struggling to leave when he pulled the trigger. Further, that the deceased was a giant of a man and was feared because he used to beat people.

17. Before proceeding to do my analysis and determination in this matter, it is necessary to state a few facts about the case. The information discloses that the incident which is the subject of this trial occurred on 17th January, 2013. The accused confirmed in his testimony that the incident actually occurred on that day. The prosecution witnesses, however, testified that the incident occurred on 17th February, 2013. This discrepancy on the alleged date of the occurrence of the incident is not significant as the parties are agreed that the incident did indeed take place.

18. Even though the deceased died in 2013, the accused was first presented to Court on 3rd July, 2017. This can be explained by the fact that the matter first proceeded by way of an inquest before the magistrate recommended that the accused be prosecuted for murder.

19. The record shows that all the four prosecution witnesses testified before E. Muriithi, J. The prosecution closed its case on 30th September, 2021 before J.M. Bwonwong’a, J. I took over this matter thereafter and only heard the defence case.

20. It is noted that the prosecution failed to call key witnesses like the pathologist, the firearm examiner and the many eyewitnesses, including the accused’s colleagues. The prosecution also failed to produce important documents like the post-mortem report and the report of the firearms examiner. Fortunately for the prosecution, the defence did not dwell much on these issues. Instead, the accused conceded that the deceased died from a wound inflicted by a bullet discharged from his firearm. His defence is, however, that the discharge was accidental and he was acting in self-defence.

21. The question to be answered in this case therefore is whether the prosecution established the guilt of the accused beyond reasonable doubt. Having charged the accused with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code, the prosecution was required to adduce evidence to demonstrate that the killing of the deceased was unlawful and the accused had malice aforethought. In Republic v Andrew Omwenga [2009] eKLR, the onus of proof placed on the prosecutor in a murder trial was highlighted as follows:“It is clear from this definition that for an accused person to be convicted of murder, it must be proved that he caused the death of the deceased with malice aforethought by an unlawful act or omission. There are therefore three ingredients of murder which the prosecution must prove beyond reasonable doubt in order to secure a conviction. They are: (a) the death of the deceased and the cause of that death; (b) that the accused committed the unlawful act which caused the death of the deceased and (c) that the Accused had the malice aforethought.In the first element, there must be evidence proving that the death of a human being (the deceased) actually occurred. The evidence required to prove the death is usually the autopsy reports given by pathologists. But there are circumstances where the cause of death is too obvious to require medical evidence like where the deceased person was stabbed through the heart or where he is decapitated or his head is crashed.”

22. I will not dwell much on the first two ingredients that needs to be proved in a charge of murder because all the witnesses, including the accused, testified that the deceased died on either 17th January, 2013 or 17th February, 2013. The incident took place during broad daylight and the witnesses agreed that the deceased was no more by the time his body was removed to the mortuary from the scene.

23. As to whether the death was attributable to the accused, all the witnesses again agreed that the deceased died as a result of an injury inflicted by a bullet that was discharged from the firearm of the accused. Indeed, PW3 who attended the post-mortem stated that the autopsy determined that the deceased died as a consequence of a gunshot wound. It was also the evidence of the accused that as he was struggling with the deceased he accidentally pulled the trigger and killed the deceased. The evidence clearly links the accused and no other person to the death of the deceased.

24. The issue of the unlawfulness of the death of the deceased will be addressed alongside the question as to whether the accused had malice aforethought. A reading of Section 203 of the Penal Code confirms that not all killings are unlawful. However, there is a general presumption that all homicides are unlawful except where circumstances make it excusable or where it is authorized by law, for instance where one is acting in self-defence, the defence of another or property. See Guzambizi S/O Wesonga v Republic [1948] 15 EACA 65.

25. In order for a conviction of murder to ensue, the prosecution must establish malice aforethought. The circumstances that can lead to the conclusion that a death was as a result of malice aforethought are outlined in Section 206 of the Penal Code as follows:“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 flight or escape from custody of any person who has committed or attempted to commit a felony.”

26. Courts have through various decisions discussed these elements of malice aforethought in an attempt to shed light on what the court should consider in reaching the conclusion that there was malice aforethought. For example, in Rex v Tubere S/O Ochen (1945) 12 EACA 63, it was held that in determining whether an accused person had malice aforethought, the court will take into account the nature of the weapon used, the manner in which the weapon is used, the part of the body targeted, the nature of injuries inflicted, and the conduct of the accused before, during and after the attack.

27. In the written submissions dated 25th April, 2022, counsel for the accused submitted that a police officer is expected to first use non-violent means. Force may only be employed when non-violent means is ineffective. Counsel for the accused supported his submission by reference to Section 61(2) of the National Police Service Act, 2011. He further submitted that when force is employed, that force must be proportionate to the objective to be achieved. According to counsel, the accused engaged the deceased in a scuffle with the aim of arresting him and subduing him but the deceased who was armed with a knife not only resisted arrest but attempted to stab him and snatch his firearm.

28. Counsel argued that the accused employed necessary force that was sufficient in the circumstances to handle the deceased and that no malice aforethought can be established in such circumstances. It is submitted that the prosecution did not lead evidence suggesting that the accused possessed any motive or intention to murder the deceased. According to counsel, the explanation by the accused that the trigger was pulled as a result of an attempt to secure the firearm from the deceased was not controverted or challenged by the prosecution.

29. Counsel further submitted that the facts of this case show that the accused was acting in self-defence and in the defence of another person. It is argued that the accused was justified to use his firearm at that time in order to protect his own life. Counsel stressed that the deceased tore the accused’s clothes with a knife and this confirms the fact that the accused’s life was in imminent danger. This Court is therefore urged to find that the deceased was the author of his own misfortune and that his death was lawful.

30. The State through submissions dated 6th May, 2022 did not offer any resistance to the defence arguments. It is simply submitted that based on the evidence on record it has been established that the accused had malice aforethought.

31. The evidence that should shed light on how the deceased met his death is that of PW1, PW2 and the accused. A review of the evidence of PW1 in its totality shows that he arrived after the fact. His evidence of the scene was that the deceased was lying beside a knife. The accused was also near the body of the deceased. The accused picked the knife from the ground and left. On cross-examination PW1 stated that the accused’s jacket was torn. The witness testified that he heard the gunshot once.

32. As regards the evidence of PW2, I find it important to reproduce part of it because the testimony on record gives the impression that PW2 saw what happened on the material day. He stated that:“The police officer caught up with him and Edward stabbed the police officer about 3-4 times. I was a little far. I saw the knife when the police officers went to separate him. Edward threw the knife when he stood up. I did not know that he had a knife when he was being arrested. I saw the knife for the first time when the two were separated by the other police officers…Edward had struggled the police officer down. The other 2 officers remained where the deceased and the police officer were struggling. I was not far. It was about 50-60 meters.The two police officers asked the deceased to throw away the knife and the deceased threw the knife about 3 meters away…When the deceased was throwing away the knife, the police officer he was struggling with was on the ground…When the deceased threw away the knife, I heard a gunshot. It is the police officer who was lying on the ground who shot. After the gunshot, I went up to the deceased and I found the deceased had now fallen. He had a gunshot wound at the shoulder joint, right shoulder.”

33. In re-examination, PW2 stressed that:I saw the deceased throw away the knife and later heard the gunshot.”

34. The evidence of PW2 as to the sequence of events, however, crumbled when he stated in cross-examination that:“I can’t tell whether the police officer shot or the gun went off. I confirm that [at] the time of the gunshot, the deceased had overpowered the police officer who was lying on the ground.”

35. Considering the evidence of PW1 and PW2, it is apparent that the evidence of PW1 is not helpful in reference to the point at which the bullet that killed the deceased was discharged. He was not present at the scene at that time. As for PW2, the impression given is that the deceased had surrendered and thrown away the knife when the accused shot him. The witness, however, contradicted his evidence during cross-examination when he stated that at the time of the gunshot the deceased had overpowered the accused and the accused was lying on the ground. The evidence of PW2 was therefore contradictory as to how the deceased was shot.

36. The other eyewitness to the incident is the accused himself. He stated that he accidentally pulled the trigger as he struggled with the deceased over his firearm. Considering that there is no clear evidence from the prosecution as to the particular point during the struggle when the deceased was shot, one cannot say that the narration of the accused as to how the incident occurred is not correct. Indeed, the evidence of the accused become more convincing when the whole picture is put into consideration. PW1 stated that when he arrived at the scene he found the accused near the body of the deceased. According to the witness, the accused picked a knife which was next to the body and took it away. The position of the knife as indicated by PW1 supports the accused’s testimony that the knife dropped as they struggled over his rifle. This evidence contradicts that of PW2 who stated that the deceased had thrown the knife away as instructed by the other police officers. PW2 stated that the incident took 3-5 minutes and he was about 50-60 meters away. He also stated that there were many people milling around. It is likely that in those circumstances PW2 may not have heard the conversation between the deceased and the other police officers, if there was such a conversation. He may also not have had a clear view of what was taking place.

37. The question is whether malice aforethought has been established in the circumstances of the case. Counsel for the accused has submitted that even though the pulling of the trigger was accidental, it is evident that the accused was acting in self-defence. I note that the defence of person or property is available where the accused uses necessary, reasonable and proportionate force to ward off imminent attack on self or another. This is codified in Section 17 of the Penal Code.

38. In Lucy Mueni Mutava v Republic[2019] eKLR the Court of Appeal highlighted the ingredients of the doctrine of self-defence as follows:“13. Equally, her defence of self defence does not hold water. This is because as was correctly observed by the trial court there was no mention that the deceased had attempted or threatened to attack the appellant with the panga that she alleged he was armed with. In point of fact, in her own testimony, the appellant stated that the deceased“…he got hold of me and pushed me slowly to my house so as to make love.”Besides, the multiple cut injuries she inflicted on the deceased at the back of his neck which led to the spinal cord being severed, in our view, was way excessive and negated any defence of self defence, if any, in light of the surrounding circumstances. See Racho Kuno Hameso vs. R [2014] eKLR.14. Our position is further fortified by the case of Victor Nthiga Kiruthu & another vs. R [2017] eKLR wherein this Court while discussing self defence stated:“The principles that have emerged from these and other authorities are as follows:-(i)Self defence, as the term suggests, is defence of self. It is the use of force or threat to use force to defend one self, one’s family or ones property from a real or threatened attack. Self defence is therefore a justification in the application of force recognized by the common law.(ii)The law generally abhors the use of force or violence, but there are instances when a person is justified in using a reasonable amount of force in self defence if he or she believes that the danger of bodily harm is imminent and that force is necessary to repel it, meaning that the force must be necessary and that it must be reasonable.(iii)It is not necessary, however, for there to be an actual attack in progress before the accused may use force in self defence. It is sufficient if he apprehends an attack and uses force to prevent it.(iv)The danger the accused apprehends however must be sufficiently specific or imminent to justify the action he takes and must be of a nature which could not reasonably be met by mere pacific means.(v)What amounts to reasonable force is a matter of fact to be determined from evidence and the circumstances of each case. [Emphasis added]15. All in all, we, like the trial court are satisfied that the appellant’s actions and more specifically the vicious nature she attacked the deceased and the resulting injuries are indicative of malice aforethought on her part as defined under Section 206 of the Penal Code…”

39. InAhmed Mohammed Omar & 5 others v Republic [2014] eKLR, the Court of Appeal held that:“What are the common law principles relating to self defence? The classic pronouncement on this issue and which has been severally cited by this Court is that of the Privy Council in Palmerv R [1971] A.C. 814. The decision was approved and followed by the Court of Appeal in R v McINNES, 55 Cr. App. R. 551. Lord Morris, delivering the judgment of the Board, said:“It is both good law and good sense that a man who is attacked may defend himself. It is both good law and common sense that he may do, but may only do, what is reasonably necessary. But everything will depend upon the particular facts and circumstances. …..Some attacks may be serious and dangerous. Others may not be. If there is some relatively minor attack, it would not be common sense to permit some act of retaliation which was wholly out of proportion to the necessities of the situation. If an attack is serious so that it puts someone in immediate peril, then immediate defensive action may be necessary. If the moment is one of crisis for someone in immediate danger, he may have to avert the danger by some instant reaction. If the attack is over and no sort of peril remains, then the employment of force may be way of revenge or punishment or by way of paying off an old score or may be pure aggression. There may be no longer any link with a necessity of defence. ….. The defence of self-defence either succeeds so as to result in an acquittal or it is disproved, in which case as a defence it is rejected. In a homicide case the circumstances may be such that it will become an issue as to whether there was provocation so that the verdict might be one of manslaughter. Any other possible issues will remain. If in any case the view is possible that the intent necessary to constitute the crime of murder was lacking, then the matter would be left to the jury.”According to Archbold– Criminal Pleading, Evidence and Practice 2002, paragraph 19-42, the test of whether force used in self defence was reasonable is not purely objective.“There is no rule of law that a man must wait until he is struck before striking in self defence.” R v Deana, 2 Cr. APP. R. 75, CCA.The above Common Law principles have been applied locally in several decisions.”

40. The Court further discussed the doctrine of self-defence as follows:“In Robert Kinuthia Mungai vRepublic(Supra), the Court held that it is a doctrine recognized in East Africa that excessive use of force in the defence of the person or property, whether or not there is an element of provocation present, may be sufficient for the Court to regard the offence not as murder but as manslaughter. But if the defence of self-defence is upheld, a conviction for murder cannot be sustained…In Beckford v Ford[1987] 3 ALL ER 425, the appellant, a police officer, was a member of an armed posse investigating an armed man who was terrorizing and menacing his family at their house. When the police arrived at the house the appellant ran out of the back of the house, pursued by police officers, including the appellant. The Crown alleged that the man was unarmed and was shot by the appellant and another police officer after he had been discovered in hiding and had surrendered. The appellant claimed that the man had a firearm, had fired at the police and had been killed when they returned the fire.The appellant was convicted for murder. His appeal to the Court of Appeal of Jamaica, contending that he was entitled to rely on the defence of self-defence if he had an honest belief that he had been in danger was rejected. The Court of Appeal held that the appellant’s belief that the circumstances required self-defence had to be reasonably and not merely honestly held. The appellant appealed to the Privy Council. The Privy Council, in allowing the appeal, held that if a plea of self-defence was raised when the appellant had acted under a mistake as to the facts, he was to be judged according to his mistaken belief of the facts regardless of whether, viewed objectively, his mistake was reasonable. Accordingly, the test for self-defence was that a person could use such force in the defence of himself or another as was reasonable in the circumstances as he honestly believed them to be. In other words, their Lordships established that self-defence depends on a subjective test, rather than an objective one.”

41. In considering whether the accused in a particular case acted in self-defence, the court will take into account the reasonableness and the proportionality of the force used; the kind of weapon used; the manner in which the weapon was used; and the nature of the injuries inflicted on the deceased.

42. In the case at hand, the accused’s testimony that the pulling of the trigger occurred during a struggle over the rifle and was thus accidental was not rebutted. The evidence on record shows that the deceased was shot once. PW2 stated that the injury was on the right shoulder. This was the only evidence of the site of the injury since no post-mortem report was produced. The site of the injury confirms that even if the accused intentionally shot the deceased, the shot was not directed at a vital organ. There was no intention to inflict a fatal injury. The site of the injury also supports the accused’s defence that the discharge of the bullet was accidental.

43. The undisputed evidence in this case is that the accused was under attack from the deceased who was armed with a knife. This fact was confirmed by the cut on the accused’s official uniform, which though not produced as exhibit, was identified by PW2 and the accused himself. A struggle ensued and the deceased overpowered the accused and wanted to take away his firearm. In advancing menacingly towards the accused with a knife, the deceased had threatened the life of the accused thus triggering the right of the accused to act in self-defence. Whether the firearm went off accidentally as alleged by accused or whether he intentionally shot the accused in order the ward him off, the right to act in self-defence had accrued and the accused cannot be faulted in such circumstances. It is important to remember that the life of the person who was being pursued by the deceased was also under threat. It is only if the prosecution had established that the deceased was shot after he had surrendered and thrown away the knife that it could be said that the death of the deceased was unlawful.

44. The conclusion I reach in this case is that the prosecution failed to establish that in pulling the trigger the accused intended to kill or cause grievous harm to the deceased. The prosecution also failed to adduce evidence negating the defence advanced by the accused. In the circumstances of the case I find the charge of murder laid against the accused person unproved. I also find his claim that he acted in self-defence plausible and he is therefore entitled to an acquittal. The accused therefore gets the benefit of doubt. He is acquitted and set free.

DATED, SIGNED AND DELIVERED AT KABARNET THIS 21STDAY OF JULY, 2022. W. KORIR,JUDGE OF THE HIGH COURT