Republic v Meli (Criminal Case 32 of 2018) [2023] KEHC 23835 (KLR) (Crim) (19 October 2023) (Judgment)
Neutral citation:
[2023] KEHC 23835 (KLR)
Republic of Kenya
Criminal Case 32 of 2018
JK Sergon, J
October 19, 2023
Between
Republic
Prosecution
and
Musa Kipngetich Meli
Accused
Judgment
1.The Accused is charged with the offence of Murder contrary to Section 203 as read with Section 204 of the Penal Code. Particulars of the offence are that, the accused on 5th November, 2018 at an unknown time at Nyalilbuch Village, Simbi Sub- Location, Soin Location within Kericho County unlawfully murdered Festus Kiprono.
2.The Accused person pleaded not guilty to the charge and the prosecution called eight (8) witnesses to prove its case.
3.Joseph Kipgeno Meli (Pw. 1) testified that on the material day he saw a missed call from the accused, his step -brother, he called him back and the accused informed him that he found Festus Kiprono eating sugarcane at his farm. Pw. 1 told the accused that he would reprimand the young boy. Pw. 1 further stated that Hillary Ngeno (his son) brought some unaccompanied cows which the deceased had previously been herding and informed him that he had tried to contact the deceased but got no response. Pw. 1 informed him that the accused had found the deceased chewing sugarcane on his farm, Pw. 1 called Musa again and asked for Festus Kiprono (deceased) and the accused said that he ran down hill on the farm. He stated that he instructed his two sons Hillary and Robert to look for Festus, they called the accused who directed them to go to his sugarcane farm, where they found Festus, he informed his brothers that the accused herein, Musa hit him on the back. Pw. 1 stated that Festus was brought back home by Hillary, Robert and Bernard Otieno, they met him along the way, Festus was not well, he could not walk, Festus informed him that he had been hit with a club by Musa. Pw.1 further testified that Festus was taken to Kericho District Hospital for treatment, however, he succumbed before they reached the Hospital. At Kericho District Hospital they were advised to report the matter at Kericho Police Station. The following day they were informed that the accused had surrendered himself at Kipsitet Police Station and that he was later called to record a statement. He stated that on 7th November, 2018, he was present when the post mortem was conducted, he and his son Hillary identified the body. The doctor performing the post mortem noted that the deceased had sustained injuries in the pancreas and some injuries on the spine and shoulder. Pw. 1 stated that he and Musa (the accused herein) had a land dispute but it was resolved, he therefore did not know why the accused had killed his son.
4.On cross examination, Pw. 1 confirmed that he was not at the scene. He also confirmed that the deceased talked about konvira that means throwing, he meant that the deceased had assaulted him with a club. He also maintained that whereas the post mortem report stated that the spinal cord was normal, the deceased was in pain and would cry whenever he tried to bend with regard to the shoulders he stated he did not know where the deceased had rolled rather he could only attest to the fact that the deceased had injury marks on the front and back of his shoulders.
5.On reexamination, Pw. 1 reiterated that he did not go to the scene, rather that when his son was brought, his son informed him that Musa threw an object which hit him at the back and abdomen. Pw.1 who was present during the post mortem confirmed that blood was found in the abdominal cavity.
6.Hillary Ngeno (Pw. 2) testified that on the material day, he was at home when he was informed that his brother, the deceased, was missing. Pw. 2 and his brother Robert Ngetich (Pw. 3) went out looking for the deceased, they had called the accused who informed them that the deceased had ran downhill, they called him and he responded from afar, when they finally located him on the sugar cane plantation farm, he was lying down face downwards and crying, he informed them that the accused found him harvesting sugarcane in his fame and assaulted him with a club. They took him to Kericho District Hospital for treatment, however, he died on the way, they lodged a report at Kericho Police Hospital and took the body to the mortuary. He stated that on 7th November, 2018 he attended the post mortem and the doctor informed them that there was internal bleeding due to rapture of the spleen caused by a blunt object. He also stated that he noted some injuries on the shoulders and the neck. He also stated that Musa is his uncle and that he bought another farm whereas they lived on ancestral land.
7.On cross examination, Pw. 2 maintained that the deceased said he was hit with a club, however, he did not say how many times he was hit. Pw. 2 stated that when they stumbled upon the deceased, he was not carrying anything, not even sugarcane. On reexamination Pw. 2 stated that the sugarcane plantation was not a rocky place, he reiterated the fact that it was Musa who assaulted the deceased and further that he saw the external injuries.
8.Robert Kipngetich Rono (Pw. 3) testified that on the material day, he was at home when his father Pw. 1 instructed him to go and look for Festus, the deceased, who was said to have eaten sugarcane in Musa’s farm. They went to look for Festus and found him near Musa’s sugarcane farm, Festus lay on his back and informed them that Musa hit him on the back and abdomen with a club, he was unable to stand up and had injuries on the back and abdomen, there were swellings on the areas of assault. They took him to hospital, however, he succumbed to the injuries on the way to hospital.
9.On cross examination, Pw. 3 reiterated that the deceased informed them that Musa hit him with a club. He confirmed that he did not see the club. He stated that the deceased’s clothes were not torn, there were no blood stains, however, he had defecated on himself. He confirmed that he was not aware of disputes between the parents. On reexamination, Pw. 3 reiterated that on the way to hospital, the deceased repeated that Musa has assaulted him with a club, then went quiet
10.Leonard Kipngeno Bett (Pw. 4) testified that on the material day, at around 7 pm he was at home when he heard screams, he went to the scene and met Hillary, Robert and Bernard Ochieng, his neighbours lifting a young boy; Festus Kiprono, the son of Joseph Meli. He stated that the young boy informed them that he was hit on the back by Musa using a club because he ate sugarcane and had injuries on the back. He stated that the boy was taken to hospital, however, at around 11pm he got a report that the young boy had succumbed to the injuries. He recorded a statement at Kipsitet Police Station. He further stated that he had cordial relations with the accused. On cross examination Pw. 4 confirmed that he heard screams, when he got to the scene, there were many people, the deceased was crying in pain, he informed them that Musa had hit him on the back using a club because of eating sugarcane in his farm, the deceased was adamant that he did not touch the sugarcane.
11.Peter Okelo Olwan (Pw. 5) testified that on the material day he was herding the cows of Joseph Meli, his employer at about 3 pm Festus Kiprono (the deceased), the son to Joseph Meli aged ten (10) years, relieved him to go for lunch, at about 4 pm he returned and found that the ten (10) cows were unaccompanied and he could not trace the whereabouts of the deceased. He returned with the cows but before reaching home met with Hillary who informed him that his father had received a phone call and had gone to the hospital. Hillary informed him that Festus had been found by Musa eating sugarcane. Pw. 5 brought back the cows and later heard some screams, he went to the scene, where he found the deceased who informed him that Musa hit him with a club, on the back and abdomen, because he saw him eating sugarcane from his farm, he stated that he noticed blood coming out of the deceased’s anus. Pw. 5 further stated that Musa the accused is an uncle to the deceased.
12.On cross examination, Pw. 5 reiterated that the deceased informed him that Musa hit him on the back and abdomen while speaking in Kipsigis, he stated that he understands Kipsigis. He further stated that he was aware that Musa used to inspect his sugarcane because children used to take the sugarcane. He was also aware that the family had a protracted land dispute, however, they had since divided the land. He conceded to the fact that there are dangerous valleys in the area. On reexamination Pw. 5 confirmed that he understands Kipsigis language and reiterated that the young boy said that Musa the accused herein hit him on the back and abdomen.
13.Bernard Ochieng (Pw. 6) stated that on the day he was at home when he heard screams, he went to the scene and found the deceased lying down but not dead, the deceased told him that he had been beaten by Musa because he had harvested sugarcane near where they found him. He stated that the boy had said that Musa hit him with a stick. He stated that he assisted the young boy and they took him to the road where he boarded a motorcycle to hospital. He was later informed that the young boy had succumbed. He stated that he was not aware of any existing dispute. On cross examination, Pw. 6 confirmed that he recorded a statement with the police. He reiterated that he heard screams and when he went to the scene the boy was lying down, fully dressed, however, there was blood and feces. He reiterated that the young boy informed them that Musa beat him. He confirmed that he did not know where Musa was and that they did not see the stick. He also confirmed that he came to court on his own volition and further that the allegation that he was threatened to come to court was a lie.
14.Dr. Wesley Rotich (Pw. 7) stated that he is a medical officer stationed at Kericho County Referral Hospital and further that on 7th November, 2018 he conducted a post mortem on the deceased. The doctor noted some bruises on right shoulder measuring 2* 4 cm and further that the deceased had a ruptured spleen and massive internal bleeding in the digestive system. He thereafter formed the opinion that the cause of death was massive internal bleeding due to blunt abdominal trauma. He filled and signed the post mortem report on the same day and produced the post mortem report as PExh. 1. On cross examination, Pw. 7 confirmed that he conducted the post mortem and that there was massive bleeding inside the abdominal cavity as a result of the ruptured spleen. He further confirmed that the body had bruises on the shoulder not related to the spleen and that he did not know if the rapture of the spleen was occasioned as a result of fall or that he was hit by a blunt object, there were no lacerations to show the object used, however, he stated that huge force is required to fracture the spleen. He stated that he does not know who caused the injury and that he did not investigate the matter.
15.Sergeant Anthony Mweti Muguna (Pw. 8) police force number 63545 stated that he was stationed at Kipsitet Police Post when the in-charge informed him that a report of a suspected murder had been made at Kericho Police Station. He stated that the murder was at Simbi Location within their jurisdiction, he went to the crime scene, a sugar plantation owned by Musa Kipngetich Meli the accused herein, on arrival at the scene, he found that the victim had been taken to hospital but had succumbed on the way to the hospital. He interviewed witnesses, who stated that the accused had assaulted the deceased using a rungu for eating sugarcane in his farm. Pw. 8, upon interviewing the witnesses, recorded their statements and prepared the murder charges. Pw. 8 stated that he did not recover the murder weapon at the scene hence proceeded back to the police station and the accused presented himself at Kipsitet Police Station, fearing for his security, they put him in custody to assist with the investigations. He further stated that a post mortem was done at Kericho District Mortuary and the findings were that the deceased was hit by a blunt object.
16.On cross examination, Pw. 8 confirmed that there were no eyewitnesses, rather a dying declaration that incriminated the accused. He reiterated that he did not recover any murder weapon at the crime scene. He stated that he does not know what caused the bruises on the shoulders of the deceased and that when he visited the scene, the body had been removed. He confirmed that the scene was within the sugarcane plantation, it had some flat areas whereas some areas were step. Pw. 8 was recalled for further cross examination, he confirmed that he visited the crime scene, however, he did not have any report on the scene of crime and did not take photographs at the scene of crime. He further stated that he was not aware of any wrangles and that he was not investigating domestic matters and that the scope of his investigation was the instant offence.
17.Musa Kipngetich Meli (Dw.1) opted to give a sworn statement and not to call any witnesses. He stated that he lives in Nyalilbuch and that he is a farmer. He testified that he was at home on 5th November, 2018 when Ouma Chege visited him, they left together, Ouma went to his house whereas he went to the farm. He stated that before he could reach his farm a boy aged ten (10) years emerged from the farm, when the boy saw him, he hid in the bush, he suspects that the boy fell down in the bush. He stated that he called the boy's father and informed him that his son had stolen his sugarcane. The deceased’s father called him and informed him that his son had not arrived home. Shortly after, he had screams and people were saying that he was the one who had killed the child, he then surrendered to the police for safety. He stated that the boy was the son of his brother and that he was not armed with a rungu as alleged by one of the witnesses. He also stated that he did not kill the deceased and that the boy got injured while running away from the farm and that the topography of the area is rocky, he produced 3 photographs of the area and the same are DExh. 1, 2, 3 and 4. He stated that the deceased had sugarcane which he had stolen from his farm and was in the process of fleeing when they suddenly met. He stated that he harbors no grudge against his brother and the deceased.
18.On cross examination, Dw. 1 confirmed that the father of the deceased is his step-brother and that he has planted sugarcane in his farm. He confirmed that on the fateful day he had lunch with his visitor, when he decided to visit his farm, while carrying a bow and arrow, he wanted to put poison in his arrow, he was aware that bow and arrow are dangerous weapons. He confirmed that he was not going hunting and that he was not planning to shoot anyone. He confirmed that he met the deceased while he was coming out of the farm, the deceased was holding two stalks of sugarcane and a panga. He stated that he knows Joseph K. Meli, who is his step brother whereas the deceased was his son, that on the fateful day he had called him and informed him that his son had stolen his sugarcane and that the boy ran away because he knew that he had committed an offense of theft. He maintained that he did not have a rungu as alleged by some of the witnesses. He also stated that he did not harbor grudges with the witnesses.
19.On re-examination, he contended the fact that there was no evidence produced in court supporting the fact that the deceased died as a result of assault by use of a rungu.
20.The parties filed submissions which I have considered. The sole issue for consideration is whether the prosecution proved its case against the accused beyond reasonable doubt.
21.Mr. Musyoki the Learned Senior Assistant Director of Public Prosecution maintained that he would rely on the submissions that he submitted at the close of the prosecution's case. In the said submissions the Learned Senior Assistant Director of Public Prosecutions maintained that the death of the deceased was not in contention which fact was further corroborated by the post mortem report on the body of the deceased whereby the doctor concluded that the cause of death was internal bleeding due to blunt abdominal trauma.
22.The prosecution submitted that there was overwhelming circumstantial evidence that shows that the unlawful act that causes the death of the deceased was committed by the accused person, there was evidence on record that the accused found the deceased eating sugarcane on his farm, took a club and assaulted him.
23.The prosecution further submitted that prior to the demise of the deceased, he mentioned that the accused had assaulted him with a club, this constituted a dying declaration which fact was corroborated by Pw. 3, Pw. 4 and Pw. 6.
24.The prosecution submitted that the unlawful act by the deceased occasioned the death of the deceased and the same was perpetuated by malice and further that at the material time when the accused attacked the deceased a ten (10) year old with a club he had formed the requisite mens rea, he hit the deceased with a lethal weapon; a club, rapturing the spleen and causing massive internal bleeding, left the boy writhing in pain and called the boy’s father. The prosecution maintained that his callous behavior was indicative of a person who had an evil intention of killing the boy or was indifferent as to whether or not the boy died.
25.The prosecution therefore maintained that the instant case was premised on the dying declaration of the deceased and further that the circumstantial evidence corroborated the dying declaration.
26.The prosecution reiterated that it had discharged the burden of proof to the standard required in criminal law.
27.Mr. Ngetich Learned Counsel for the accused filed submissions and contended that the prosecution had failed to prove its case beyond reasonable doubt on several grounds.
28.Firstly, that the prosecution failed to ascertain the murder weapon and therefore did not produce the murder weapon in court, the prosecution relied heavily on the findings of the post mortem report which stated that the cause of death was internal bleeding, from being hit by a blunt object, which could either be as a result of being hit or falling on an object such rocks while in high speed thereby occasioning such injury.
29.Secondly, the prosecution failed to establish the motive of the crime, which is a requirement to link the accused to the crime as required by section 203 of the Penal Code CAP 63 Laws of Kenya. The Learned Counsel for the Accused submitted that the meeting or encounter between the accused and the deceased was not contemplated rather the accused met the deceased as he was fleeing after stealing two stalks of sugarcane. The Learned Counsel for the Accused thereby maintained that the prosecution did not establish or prove that the accused had malice aforethought.
30.Thirdly, the defence faulted the prosecution for relying on a dying declaration and more so the dying declaration from a young child, and the veracity and the credibility of the dying declaration could not be ascertained.
31.Finally, the Learned Counsel argued that the prosecution case was based on indirect and/or circumstantial evidence as no prosecution witness had witnessed the assault on the deceased. The Learned Counsel submitted cited the court of appeal case of Sawe v Republic [2003] in which the court of appeal stated that in order to justify a conviction on circumstantial evidence, the inference of guilt , the inculpatory facts must be incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of his guilt and the case of Abanga alias onyango v. Republic Criminal Appeal No. 32 of 1990 (unreported) in which the court set out a three tier test that the courts can use when a case relies solely on circumstantial evidence. The Learned Counsel maintained that the prosecution failed to discharge its evidentiary burden and therefore the court had the option to discharge the accused or set him free forthwith.
32.The offence of murder is provided for in section 203 of the Penal Code that provides as follows; “Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.” In Republic v Andrew Omwenga [2009] eKLR the court held: “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 the 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.”
33.The accused in this case was charged with the offence of murder contrary to section 203 of the penal code which defines murder as the unlawful killing of a person or persons with malice aforethought.
Death and Cause of Death
34.In this case the death of the deceased is not disputed; the deceased succumbed on the way to hospital and a post mortem was conducted on 7th November, 2018 by Dr. Wesley Rotich Pw. 7 produced the post mortem report as PExh. 1. His findings were that the deceased had a ruptured spleen and massive internal bleeding in the digestive system. He thereafter formed the opinion that the cause of death was massive internal bleeding due to blunt abdominal trauma.
35.On cross examination, Pw. 7 stated that although he did not know if the rapture of the spleen was occasioned as a result of a fall or whether the deceased was hit by a blunt object, he stated that huge force is required to rupture the spleen.
Whether the accused committed the unlawful act which caused the death of the deceased
36.There were no eyewitnesses who saw the accused assaulting the deceased, however, there are several witnesses to wit Pw. 2 and Pw. 3 who referred to a dying declaration by the deceased prior to his demise. The deceased informed his brothers Hillary and Robert that he had been assaulted by the accused, when they found him lying down and writhing in pain in the sugarcane plantation on the material day, the deceased repeated the said fact to Pw. 2 and Pw. 3 that it was the deceased who assaulted him on the way to hospital before he succumbed. I am cognisant of the fact that no weapon was recovered at the scene, however, the injuries documented on the post mortem report to wit some bruises on right shoulder measuring 2* 4 cm, a ruptured spleen and massive internal bleeding in the abdominal cavity informed the medical opinion by Pw. 7 that the cause of death was massive internal bleeding due to blunt abdominal trauma. The finding on the cause of death is consistent with an assault based on the dying declaration of the deceased after he was found by his brothers writhing in pain on the sugarcane plantation owned by the accused on the material day. Accordingly, I am satisfied that the prosecution proved beyond reasonable doubt that it was the accused person who unlawfully caused the deceased’s death.
Whether the Accused Person had Malice Aforethought.
37.For the charge of murder to succeed, it must be proved that they acted with malice aforethought. Section 206 of the Penal Code provides circumstances from which malice aforethought may be inferred. They are: "(a) An intention to cause 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 cause;© An intention to commit a felony;(d)…"
38.As to whether the accused had the requisite mens rea, I am inclined to agree with the submissions tendered by the prosecution, the accused hit the deceased, a child of tender age, ten (10) years with a lethal weapon; a rungu, rapturing the spleen and causing massive internal bleeding in the abdominal cavity, left the boy writhing in pain and called the boy’s father informing him that the found the boy with two stalks of sugarcane from his sugarcane plantation. I therefore agree with the prosecution that the accused's callous behavior was indicative of a person who had an evil intention of killing the boy or was indifferent as to whether or not the boy died.
39.This is a case whereby there were no eyewitness accounts but is based on a dying declaration by the deceased that the accused assaulted him on the material day and as a result the deceased sustained fatal injuries to which he succumbed, section 33 (a) of the Evidence Act provides that a statement made by a deceased person relating to his cause of death is admissible in evidence: “When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question. Such statements are admissible whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.”
40.In Philip Nzaka Watu v Republic [2016] eKLR the Court of Appeal stated the following on admission and reliance on a dying declaration: “Under section 33(a) of the Evidence Act, a dying declaration is admissible in evidence as an exception to the rule against admissibility of hearsay evidence. Under that provision, statements of admissible facts, oral or written, made by a person who is dead are admissible where the cause of his death is in question and those statements were made by him as to the cause of his death, or as to any of the circumstances of the transaction leading to his death. Such statements are admissible whether the person who made them was or was not expecting death when he made the statements… While it is not the rule of law that a dying declaration must be corroborated to found a conviction, nevertheless, the trial court must proceed with caution and (sic) to get the necessary assurance that a conviction founded on a death declaration is indeed safe.” In Musili v Republic [1991] eKLR the Court of Appeal upheld a conviction based on the dying declaration and observed as follows; “However, it has always been stressed by the Court of Appeal that although there is no rule of law that to support a conviction there must be corroboration of a dying declaration, but it is generally unsafe to base a conviction solely on an uncorroborated dying declaration, and that too great weight should not be attached to dying statements which should be received in evidence with caution…” In the instant case it is clear that the deceased was referring to the accused as the person who had assaulted him. The dying declaration having been consistently repeated to several witnesses, and it being clear that the accused was identified as the person who assaulted the deceased, I find that the dying declaration was sufficiently corroborated and is safe to rely upon.
41.I do take cognizance of the fact that there are no eye witness accounts to the events leading to the demise of the deceased, however, I find that circumstantial evidence points to the culpability of the accused persons. In Sawe v Rep [2003] KLR 364, the Court of Appeal expressed as follows: “In order to justify on circumstantial evidence, the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of his guilt. There must be no other co-existing circumstances weakening the chain of circumstances relied upon. The burden of proving facts that justify the drawing of this inference from the facts to the exclusion of any other reasonable hypothesis of innocence remains with the prosecution. It is a burden which never shifts to the party accused.”
42.Accordingly, I find that the defence put forward by the accused person namely: Musa Kipngetich Meli does not displace the prosecution’s case. The prosecution has proved its case against the accused beyond reasonable doubt and in the premises, I find the accused person guilty for the offence of murder contrary to section 203 as read with section 204 of the Penal Code. The accused persons are hereby convicted.
DATED, SIGNED AND DELIVERED AT KERICHO THIS 19TH DAY OF OCTOBER, 2023.………….…………….J.K. SERGONJUDGEIn the presence of:C/Assistant - RutohMr. Musyoki for the StateAccused – Present in Prison.Ngeno for the Accused