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|Case Number:||Criminal Case 46 of 2014|
|Parties:||Republic v Robert Kiprotich Koech alias Kipkoikoie|
|Date Delivered:||08 Nov 2017|
|Court:||High Court at Kericho|
|Citation:||Republic v Robert Kiprotich Koech  eKLR|
|Case Outcome:||Accused found guilty of murder|
|Disclaimer:||The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information|
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KERICHO
HIGH COURT CRIMINAL CASE NO. 46 OF 2014
ROBERT KIPROTICH KOECH
Alias KIPKOIKOIE…………………… ACCUSED
1. The accused, Robert Kiprotich Koech alias Kipkoikoie, is charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code. The particulars of the offence are that on the 28th day of December 2014, at Kapnyokitari village Belgut District within Kericho County, he murdered Daisy Cherotich Mutai.
2. The accused pleaded not guilty to the charge, and his trial commenced before Ong’udi J. Following the transfer of Hon. Ong’udi, the matter was heard further by Muya J, the accused having elected, pursuant to section 200 of the Criminal Procedure Code, to proceed with the trial from where it had reached before Ong’udi J. A similar election was made when the matter was placed before me.
3. The prosecution case as presented through the prosecution witnesses was that the accused and the deceased were lovers. On the night of 27th December 2014, they had gone together for a party held by a merry-go-round group known as “Tuinuane” in the home of one Reuben Arap Busienei. They were seen together by a number of people, one of whom left them together at about 4.00 a.m. The deceased was then found hanging on a tree at about 6.00 a.m. that morning. The accused and the deceased were heard about 5.00 a.m. arguing over money that the deceased had received from the merry-go-round. The post mortem report showed that the deceased had died from strangulation. The prosecution case is that the accused quarreled with the deceased, strangled her, and then made the death appear to be a suicide by hanging her up on a tree with a lesso. The prosecution called 9 witnesses in support of its case.
4. PW1 was Caroline Chepkemoi, a business woman from Nyaberi. Her evidence was that on 27th December 2014 she went to a neighbour’s house for a tea feast. The feast was at the home of Reuben Arap Busienei. She found many people there, including the deceased, who had brought her alcohol to sell there. PW1 was at the feast with the deceased and the accused, and they were at the feast up to 3.00 a.m. She asked the deceased and the accused to wait for her so that they go home together as she did not have a torch and the deceased had one.
5. They waited for her and walked together. She was going to branch off from the deceased and the accused, who were going to walk in the same direction. The deceased had busaa with her, and before they parted, the three of them sat down and took the busaa. They parted at 4.00 a.m., and PW1 left the accused and the deceased together and went home. The next morning, PW1 was informed by her mother that Daisy had been killed, and she went to where the body of the deceased was.
6. According to PW1, the accused and the deceased used to live together in a certain house. PW1 found the deceased hanging on a tree outside the house, and near her was a stick. In cross-examination, she confirmed that she was with the deceased and the accused at the party which had started at 3.00 p.m., and that they were all drinking changaa and busaa. She further confirmed that she, the accused and the deceased sat at a junction and drunk busaa and changaa.
7. PW2, Mercy Yegon from Kiplogoyet – Kaitui testified that on the material day, she was at her grandmother’s home for a party. It appears from her evidence that the deceased was her aunt. She had gone to the party with the deceased, Daisy, Edna and Sheila. The others entered the house while she remained outside. She stayed at the party until 11.00 p.m. when she left with one Chemutai and went to the said Chemutai’s home where they slept, and she left for her home the next day.
8. On the way, she found that her aunt had been killed and hanged on a tree outside the house of one Gladys, who was deceased. No-one lived in that house. According to PW2, she screamed when she saw her aunt and informed her grandmother. In cross-examination by Mr. Koske for the accused, PW2 confirmed that she had been at the party and had left others there. She had found the deceased hanging on a tree, to which she was tied with a sheet. PW2 did not see anyone at the scene.
9. The third prosecution witness was Geoffrey Chepkwony, a boda (motor cycle) rider from Kipsitet. PW3’s evidence was that on 27th December 2014, he was on duty and he came home at 7.00 p.m. and slept. At 5.00 a.m., he heard noises from outside. He went outside but the noise had gone down, so he returned to the house. He heard screams at 6.00 a.m. from his mother’s house, one Anne Bii. He ran there and found PW2 who told him that her aunt had been killed and hang on a tree. PW2 took him to the scene and he found his sister dead and hanging on a tree outside a house, whose owners had died.
10. According to PW3, the deceased had been married but had left her husband and was living on her own in her own house. She was having an affair with Robert Koech, the accused. They had had problems and the accused had even burnt down the deceased’s house. They had been lovers for 5 years, and had been living in the new house after the accused burnt the deceased’s house three weeks after they started living there.
11. In cross-examination, PW3 stated that the deceased and the accused used to chase after each other. He had been woken up by screams from his mother’s house, and had found Daisy hanging outside a house on a neighbour’s compound which was not occupied. He maintained that the accused had burned down Daisy’s house, but had not been arrested though the police were looking for him.
12. PW4, Pastor Joel Kiprono Bii testified that on 28th December 2014 at 7.30 a.m. he was at home when he heard screams from his elder brother’s home. He ran there and found that the screams were coming from his brother’s neighbour’s home. He found the deceased hanging from a tree outside the house. He also found many people at the scene, and asked where Robert was. PW4 testified that the deceased had separated from her husband and was in a relationship with Robert, a fact that was within everyone’s knowledge. The two lived together in a house which they had built. According to PW3, a month before the deceased’s death, the accused had burnt the deceased’s house.
13. PW5, Esther Chesang Pyegon was a housewife and resident of Nyaberi village. Her testimony was that on 28th December 2014, at around 5.00 a.m., she was asleep. She heard screams and woke up to find that it was her neighbour, Daisy, who was screaming. In the morning, she went and asked Evaline whether she had heard the screams, to which Evaline responded in the negative. She then inquired about Daisy’s whereabouts and was informed by a child called Chepkemoi that Daisy was found hanging on a tree near Joel’s homestead.
14. PW5 further testified that Daisy had been in a relationship with the accused at the dock. She was hanging on a tree, with one of her legs on the ground and the other one in the air. According to PW5, a lesso, which the witness identified as the one before the court, had been used to hang her.
15. PW5 further testified that the body of the deceased was found in the homestead of a neighbour, Joel Kipyegon, where Daisy was staying as her house had been burnt down by the accused. At the time of Daisy’s death, according to PW5, Daisy and the accused were staying together but were not married. They were members of a merry go round and had disagreed over the sharing of the proceeds.
16. In cross-examination, PW5 stated that Daisy Cherotich was a neighbour. She had not gone to Daisy’s house when she heard her screams, but to Evaline’s house. She did not know at the time what had happened. She was informed by Evaline that Daisy had gone to sell alcohol at Busienei’s place. Daisy’s body was found at the compound of Joel, not at the accused’s house. In re-examination, she stated that when she heard the screams, she could not clearly locate where they were coming from. She stated, however, that the accused and the deceased were staying at Joel’s place, and that the body was found hanging at Joel’s place.
17. PW6 was Nicholas Kiprono Langat, a casual labourer, also from Nyaberi village. On 27th December 2014 at around 1.00 p.m., he had gone to collect his phone from Daisy’s place where it was being charged, and he found her there. On 28th December 2014, at around 5.00 a.m., he heard screams. According to PW6, Robert, the accused, was quarrelling with Daisy about money, proceeds from a merry go round, and a phone. PW6 testified that the deceased and the accused quarreled for about an hour, with the accused asking for his money. He had known the two of them for about four years. He did not see them but heard their voices, and as they were nearby, he could identify them by their voices.
18. PW6 stated that he went to make tea and heard screams coming from Joel’s place. He went to the scene and found that Daisy had already been killed. Her body was hanging from a tree, with one leg on the ground and the other in the air. A lesso, which he also identified as the one before the court, had been used to hang her.
19. PW6 also testified that Joel, who was deceased, was a neighbour. That he had known the accused and the deceased for four years, and they were his friends. They were staying at Joel’s place as it was a deserted home. From PW6’s home to Joel’s home was about 50 metres.
20. In cross-examination, PW6 stated that he had gone to collect his phone from Daisy’s house on 27th December 2014, and that she was staying with her parents. On 28th December 2014, he heard people quarrelling but did not go to where they were quarrelling. He further stated that he knew the accused’s home, and that the accused was married but was not staying with his wife and children as they had separated.
21. PW7 was Dr. Gilbert Langat, a medical officer at Kericho District Hospital. He had performed the post mortem on the body of the deceased, Daisy Cherotich Mutai, on 2nd January 2015 at Kericho District Hospital. He stated that on external appearance of the body, there was a piece of cloth tied around the neck of the deceased, with the knot on the right side. He also found strangulation marks around the neck. There were no bruises on the body.
22. The post mortem evidence indicated that the deceased had peripheral cyanosis, showing that she was not able to breathe properly. An internal examination showed that there was haematoma or bleeding around the neck. The hyoid bone and thyroid cartilage were intact. There was ischaemia of both lungs which, according to Dr. Langat, shows there was not enough oxygen supply in the body. The cause of death was found to be asphyxia secondary to strangulation.
23. Dr. Langat further testified that they ruled out hanging due to the piece of cloth. In a hanging, the knot is tied behind the neck and there is breakage of the hyoid bone and the thyroid cartilage. He produced the post mortem report dated 2nd January 2015.
24. His evidence on cross-examination was that the deceased’s neck was tied with a piece of cloth, with the knot on the right side of the neck. It was his evidence that in 90% of hanging cases, the knot is behind, though he conceded that it can happen to be on the right side.
25. PW8 was No. 86619 PC Titus Muriuki Rukunga. He was a scene of crime officer attached to the Directorate of Criminal Investigations in Kericho, Crime Scene Support Services. His evidence was that he was called by Corporal Oluoch of DCI Kericho to accompany him to a scene of murder at Simbi area, Kipsitet, Kericho. He took several photographs of the scene and of the deceased, some general and others close-ups of various items. He had photographs of the deceased hanging on the tree by the lesso (photo 1), a photo showing dragging marks on the ground (photo 5) photo showing the deceased’s left leg stepping on the ground while the right leg was hanging (photo 6 and 8). Photo 10 showed strangulation marks on the deceased and the fixed cloth used to hang the deceased, while photos 11 and 13 showed how the deceased was hanging, and the mud on her clothes. The photographs were produced as exhibit numbers 3 (a) to (p). PW6 also produced the certificate in respect of the photos in evidence as exhibit 4.
26. Nothing much emerged from his cross-examination save that the name of the village that was given to the police was Simbi. It also emerged that there was some disturbance of the vegetation at the scene, and that he took the photographs at 11.00 a.m.
27. The final prosecution witness, PW9, was the investigating officer, No. 62381 Corporal Apello Oluoch, then stationed at CID Kipkelion. Prior to that posting, he was stationed at CID Kericho on general investigations.
28. His evidence was that on 28th December 2014, at around 10.00 a.m., he received a call from the Deputy OCS, Kericho Police Station, Inspector Mohamed, who instructed him to proceed to Kipsitet Police Post where a murder case had been reported. He went with scene of crime personnel PC Rukunga (PW8) to the police post and found police officers who directed them to the scene where the alleged offence had occurred, in an area generally known as Nyaberi area. They arrived at the scene around 11.00 a.m. and found the body of a woman, who seemed to be in her twenties, hanging on a tree. The body was identified by the deceased’s brother, Gilbert Chepkwony Kipkurui (PW3), as that of Daisy Cherotich.
29. PW9 testified that their investigation established that the deceased was in the company of the accused, Robert Koech, who was her boyfriend, and that they had stayed together in the village for more than three years. The police further established that prior to her death, the deceased was in the company of the accused in the home of Arap Busienei celebrating an end year party hosted by Tuinuane Youth Group, a chama in which the deceased was a member.
30. According to PW9, the information they received was that the deceased, the accused and one Caroline Chepkemoi (PW1) were in a drinking spree until 5.00 a.m. in the morning of 28th December 2014 when they left together. They carried some busaa and changaa which they continued drinking. Caroline parted company with the deceased and the accused on the way and went home. The accused and the deceased went together to the home of the late Joel Biegon where they used to live together since the house of the deceased had been burned down by the accused in October 2014. Before they could reach the homestead of the late Joel Biegon, they sat by the road side and the accused started quarreling with the deceased about the chama money which the accused alleged that he had been giving the deceased to contribute to the chama on the expectation that he would get his money at the end of the year, though he did not specify how much.
31. This quarrel was also heard by Nicholas Kiprono Langat (PW6). PW6 tried to advise them to keep quiet and proceed to where they used to sleep but they did not pay head. One Esther Pyegon (PW5), the mother of PW6, saw them leaving where they sat to the home of Joel Biegon. After some time, PW5 heard screams emanating from where the deceased and the accused had proceeded. According to PW9, the deceased was screaming, “why do you want to kill me?” She screamed thrice and then the voice stopped. At around 7.00 a.m., when one Betty Chemngetich was passing by, she saw the body hanging on a tree and made a report to the deceased’s brother and the brother subsequently made a report to the police.
32. PW9 testified that from the scene, they established that the deceased did not hang herself but was strangled somewhere, supposedly within the homestead and subsequently brought to the tree. In his view, if she had hanged herself, the distance from the ground and her legs would have a space. They also were of the view that if she had hanged herself, the lesso that was tied to the neck of the deceased in a tight knot would have been tied differently. They therefore decided to charge the accused with the offence of murder.
33. The investigating officer further testified on the investigations they carried out in relation to the relationship between the accused and the deceased, which has emerged from the evidence of the other prosecution witnesses as detailed earlier in this judgment. PW9 produced the lesso that had been tied around the deceased’s neck in evidence. He further testified that the accused had been arrested by members of the public on 29th December 2014 and handed over to Kipsitet Police Station.
34. In cross–examination, PW9 stated, inter alia, that the accused and deceased were living together before her death in the home of one Joel Biegon. That the deceased has a wife, and stays at his parents’ home. He further stated that the accused, the deceased and others had been having a party at the home of Arap Busienei, though he did not interrogate the said Busienei as he had gone to Nairobi. It was also his evidence that the accused had burnt the deceased’s house, though he was not investigating the burnt house and the evidence in this regard had come up in the course of investigation of the murder.
35. The prosecution then closed its case, and after considering the evidence on record, Counsel for the accused electing not to submit on whether or not the accused had a case to answer, the court found that the prosecution had established a prima facie case against the accused and placed him on his defence. The accused elected to give unsworn evidence and call two witnesses. He, however, called only one witness, his mother.
36. In his unsworn statement, he stated he is a tractor driver and understands the nature of the case against him. With respect to the material day, he stated that he had woken up on the morning of 27th December 2014 and proceeded to look for sugarcane. He had reached a certain farm where he parked the tractor he was driving and gone back home. He had carried a sheep’s head home, and was served with the tongue. After the meal, his mother informed him that there was a merry go round at the house of Reuben at Kapkikoro. He proceeded there with his mother, and they stayed there till 5.00 p.m. They requested that the merry go round should go to their home next as they had a form one student who needed school fees, then they left for home. His mother went to her house while he went to his.
37. The accused further stated that he was woken up on the morning, of 28th December 2014 by screams from the house of one Nyekitari. He rushed there and found the body of Daisy. He then went back to where he had parked the tractor and took the tractor to his boss.
38. The accused confirmed that he knew the deceased. He stated that she was married to one Richard Kimutai. He stated that what Kiprono (PW6) said he heard the accused say to the deceased was a lie as where Kiprono resides and where the body of Daisy was found is far. He also denied that he had set fire to Daisy’s house, for if he had done so, he would have been arrested and charged.
39. DW1 was Sarah Korir, a farmer and resident of Nyaberi village. She is the accused person’s mother. Her testimony was that on 27th December 2014, she, the accused and his wife attended a merry go round at around 3.00 p.m. The merry go round was at a village called Kapkigiro, about 10Km from their village. They contribute Kshs 500 at the merry go round. They stayed there until 7.00 p.m.
40. DW1 stated that she did not see Daisy at the merry go round. She was emphatic that Daisy was not at the merry go round, that she knew the village where the deceased resides but she was not at the merry go round. It was her testimony further that she went home at around 8.00 p.m. as it was dark. She went home with the accused, his wife and some young children.
41. DW1 further testified that when they got home, they slept until 9.00 a.m. when they heard screams from a village called Kerongon, which is about 8km from their village as it is on hilly ground. She, Robert and her other children went to where the screams were coming from. When they arrived, they saw a body hanging on a tree near an abandoned house. Police then came and took away the body of the deceased, then DW1 and the accused left for home.
42. It was her testimony further that she knew PW6, Nicholas Kiprono Langat, but that he stays far away at Kipkures village, which is about 5km from where Daisy was found. She further testified that the accused had a wife at home and did not cohabit with Daisy. She denied that the accused had killed Daisy, and asserted that the accused was with her at the merry go round.
43. On cross-examination, DW1 stated that the accused was her third born child. He was married to one Regina and they had had two children but one had passed away. He and the said Regina had been together for more than 15 years. She also stated that she had gone to the merry go round with the accused, but that it was not known as “Tuinuane’, which was a different group that she was not a member of, and neither was the accused.
44. She confirmed that she knew the deceased, but had not seen her visit her home with the accused. She also confirmed that she knew Joel Biegon, the owner of the abandoned house near which Daisy’s body was found. She maintained that no-one was living at the house, that her son was living at his own house in her compound. She had parted from him at around 9.00 p.m. and seen him go to his house which was near her house. She had seen him the following day, around 11.00 a.m., but between 9.00 p.m. and 11.00 a.m. he was in his house. Her evidence was that she knew that he was in his house as his 4 year old child came to wake her up and she had asked the child whether he was home, and the child had confirmed that he was.
45. DW1 further stated in cross-examination that the accused had been suspected of arson but had not been arrested or charged. The house that he had been suspected of setting ablaze, according to DW1, did not belong to Daisy but to her parents. She further stated that the accused did not reconcile with Daisy after the incident, and that Daisy was at her matrimonial home with her husband at the time of her death.
46. I have considered the prosecution and defence evidence before me, and the submissions made by respective Counsel in the matter. The accused faces a charge of murder contrary to section 203 as read with section 204 of the Penal Code. Section 203 provides that:
Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.
47. The penalty prescribed by law for the offence of murder under section 204 of the Penal Code is death.
48. In order for the offence of murder to be established, two elements are essential: the act causing death, and the mens rea. Section 206 of the Penal Code defines ‘malice aforethought’, the essential element in the offence of murder, by stating 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.
49. In the present case, the deceased was found hanging by her neck from a lesso, tied to a tree. The cause of death, according to the post mortem report produced by Dr. Gilbert Langat (PW7), was strangulation. The photographs taken from the scene showed the deceased hanging by her neck from the tree, the knot of the lesso from which she was hanging on the right side of her neck. She had strangulation marks on her neck, her left leg was touching the ground while her right leg was curled up. She had mud on her clothes, and there were dragging marks, according to PW9, on the ground. The evidence thus indicates that she was strangled by someone, and the hanging staged to make it appear that she killed herself.
50. Who was responsible for the killing of the deceased? The prosecution evidence places the accused and the deceased together on the 27th and 28th of December 2014. The evidence of PW1 and PW2 was that they were with the accused and the deceased at a party at Arap Busienei’s homestead. PW1’s evidence is that she left the party with the accused and the deceased. After they had sat down and taken busaa and changaa together, she left the accused and the deceased, who were living together, to go home. This was about 4.00 a.m. She learnt a few hours later that morning that the deceased’s body had been found hanging on a tree next to the homestead where the accused and deceased resided.
51. PW5’s evidence was that she had heard the deceased screaming, and had recognised her voice. PW6, who was a neighbour and friend of the deceased and the accused and had known them for over four years, heard them arguing over money. He recognised their voices. A few hours later, the deceased was found dead. The accused was not in the compound.
52. As submitted by Counsel for the accused, the prosecution case is based on circumstantial evidence. No-one was an eye witness to the murder of the deceased. What is undisputed is that the deceased died as a result of strangulation, as the post mortem and photographic evidence demonstrate. Her body was then arranged to make it appear as though she had committed suicide. The court notes that her left foot was touching the ground, while her right leg was curled up, which, particularly the placement of the left foot, are inconsistent with suicide by hanging.
53. The law on circumstantial evidence in this jurisdiction is fairly well established. It is that a court may convict on circumstantial evidence where such evidence points irresistibly to the accused as the perpetrator of the offence charged. In R vs Kipkering arap Koske & Another 16 EACA 135 the court stated as follows:
“In order to justify the inference of guilt, the inculpatory fact must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt.”
54. In its decision in Sawe vs Republic  KLR 364 at page 375, the Court of Appeal stated as follows:
“There must be no other co-existing circumstances weakening the chain of circumstances relied on. 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 is on the prosecution, and always remains with the prosecution. It is a burden which never shifts to the party accused.”
55. The accused was seen at the party with the deceased. He was the last person who was seen with her alive, a few hours before she was found hanging on a tree, dead. The evidence indicates that the deceased and the accused were lovers, and had been for a period of five years. They had been living together in the abandoned house, whose owners were deceased, since the accused had burned down the deceased’s house.
56. In his defence, the accused presented an alibi of sorts, supported by his mother, the only witness that he called. He had left home on 27th December 2014 and gone and parked the tractor that he was driving somewhere. He had then bought a sheep’s head, and made a meal of the tongue. He had then gone to the party at Arap Busienei’s house with his mother at 3.00.p.m., where he left at 5.00 p.m. He thereafter went to his house, and only left the following morning when he heard screams following the discovery of Daisy’s body.
57. His mother supported his claim that he had gone to the party with her. She stated that she had gone with him, as well as his wife and children. It was a party by a merry go round to which they were members. According to the accused’s mother in her evidence in chief, they had not seen Daisy at the party, and had left the party at 7.00 p.m., or 8.00 p.m. according to her evidence on cross-examination. The accused had gone to his house within her compound, and had been in the house all night. She stated that she learnt this from her 4 year old grandchild, a child of the accused, who had gone to wake her up.
58. Is the evidence of the accused and his mother credible? I gauge their credibility by considering some aspects of the evidence of the accused’s mother, which supported the prosecution evidence in some respects. It emerged from the prosecution evidence that the accused and the deceased were lovers, and that the accused had burned down the deceased’s house. In her evidence, DW1 conceded that the accused had been suspected of arson but had not been arrested or charged. She stated that the house he had been suspected of setting ablaze belonged to Daisy’s parents, not to Daisy. She further stated that the accused did not reconcile with Daisy after the incident. This supports the evidence of the prosecution about the accused and the deceased being lovers, for why else would the issue of reconciliation arise if they were not?
59. In his submissions, Counsel for the accused took the view that the prosecution had not proved its case to the required standard as it had not been proved that the accused and the deceased were living together. It was also his submission that the court should not rely on voice identification, in reference to the evidence of PW5 and PW6. He relied on the decision of the Court of Appeal sitting in Malindi in Ibrahim Ali vs R Malindi Criminal Appeal No. 92 of 2016.
60. However, in the present case, the cumulative evidence, even supported in some aspects, as I noted above, by the testimony of the defence witness, shows that the deceased and the accused were lovers. With the exception of his mother, all the other witnesses testified that the accused and the deceased were living together in an abandoned house, after the accused burned down the deceased’s house. The deceased was the last person seen alive with the deceased, about two hours before she was found dead. He was heard quarrelling with her, and she was heard screaming by people who knew the two of them. Unlike the situation in the Ibrahim Ali vs R case, the court in this case is not being asked to rely solely on voice identification of the accused as the perpetrator.
61. Taken together, the circumstantial evidence adduced by the prosecution against the accused leads to only one conclusion: that it was the accused who murdered the deceased, and attempted to make it appear that she had committed suicide. They were lovers. They went to the party at Arap Busienei’s homestead together. They were left together by PW1 at about 4.00 a.m. to go to the house where they were cohabiting.
62. They were heard quarrelling by PW5 and PW6, both of whom knew them for many years, and who recognised their voices. The evidence of PW5 was that she heard Daisy screaming, while PW6 heard the two quarrelling over money. There was testimony from the investigating officer that Daisy had been heard to scream “why are you killing me?”, but this did not emerge from the evidence of any of the other witnesses. All in all, however, I am satisfied that the circumstantial evidence presented by the prosecution established, beyond reasonable doubt, that it was the accused who, with malice aforethought, caused the death of the deceased, and then attempted to disguise it as a suicide.
63. What of the accused person’s unsworn statement and the evidence of his mother that he was with her and at home at the material time? The best that can be said of the accused’s statement is that it is a somewhat rumbling and convoluted but ultimately unhelpful statement. The evidence of DW1, the accused’s mother, can only be described as a rather weak attempt by a mother to save her son. No credence can be placed on it.
64. In the circumstances, it is my finding that the accused did, with malice aforethought, cause the death of the deceased. I therefore find him guilty of the offence of murder contrary to section 203 as read with section 204 of the Penal Code and convict him in accordance with section 215 of the Criminal Procedure Code.
Dated delivered and Signed at Kericho this 8th day of November 2017.