REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KAPENGURIA

CRIMINAL CASE NO. 12 OF 2019

REPUBLIC.......................................................................................................PROSECUTION

-VERSUS-

ALEXANDER PKEMEI KAMERIMUK alias SIWAKAPEL TUMORIO........ACCUSED

JUDGMENT

1. The Accused, Alexander Pkemei Kamerimuk alias Siwakapel Tumorio, 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 state that on 21^st December, 2017 at Chepkuikui Village, Pokot Central Sub-County, West Pokot County, the Accused jointly with others already before court and others not before court murdered Ringetiang Tomeluk.

2. The Accused pleaded not guilty to the charge.

3. It is important to note that this case was initially heard by R.N. Sitati, J who at the close of the prosecution case found that the Accused had a case to answer and placed him on his defence. She, however, retired from the Judiciary before hearing the defence case. Bwonwong’a, J heard the defence case but was transferred before the parties could file and highlight their submissions. When I took over the matter and upon compliance with the provisions of Section 200 of the Criminal Procedure Code, the parties asked me to proceed from where Bwonwong’a, J had left the matter.  

4. The prosecution called six witnesses. The Accused gave unsworn testimony in his defence and did not call any witness.

5. PW1 Abraham Kibet testified that on 3^rd January, 2018, he identified the body of Ringetiang Tomeruk (hereinafter also referred to as the deceased) at Kapenguria County Referral Hospital mortuary for the purpose of postmortem. On cross-examination he stated that he only visited the scene of crime after the incident and he did not therefore see the Accused commit the offence.

6. PW2 Elizabeth Chesang testified that on 28^th December, 2017 at about 5pm, she was in the company of other people when one Losianyang accused his own father by the name Muketiang of being a sorcerer. Losianyang and his friends started assaulting Murketiang who mentioned that the deceased was one of the people who performed witchcraft with him. It was at this juncture that the friends of Losianyang namely Jack Karetamoi, Kakalieng Petanya, Ritengura Remoi and Sotin Konutingori went and brought Ringetiang to where Murketiang was and assaulted him. As soon as Ringetiang was brought to the scene, police officers arrived but they were chased away by the mob. It was the testimony of PW2 that the hands of Ringetiang and Murketiang were tied using mosquito nets by Chemogh and Renanguria.

7. PW2 proceeded to testify that while standing about 4 meters away, she saw Ringetiang and Murketiang being forced to fit inside a tyre. Thereafter, she saw the Accused pour petrol on them after which Losianyang lit a match on the two men. When she saw the fire, she ran away.

8. It was also the evidence of PW2 that she had followed the people who had gone to bring Ringetiang from his home to where Murketiang was and that she saw those people assault him. She identified the Accused as the one who poured petrol on the two men. Further, that when she went back to the scene the next morning she only found the tyre since the bodies had been removed.

9. On cross-examination, PW2 stated that the deceased was her father-in-law and that the incident took place at Runo Village and not Chepkuikui which is not far from Runo. She also testified having seen the Accused from morning until the time the two victims were set ablaze.

10. PW3 Klatan Ringetiang Samson testified that the deceased Ringetiang was his father. He told the Court that on 28^th December, 2017 he went to the place where Losianyang was interrogating Murketiang on allegation that he was engaged in witchcraft. While there, he heard Murketiang mention that Ringetiang was also involved in witchcraft. Losianyang was in the company of Chemogh, Rionongura Rimoi and Sotin Komolingiro among many other people.

11. PW3 told the Court that when Ringetiang’s name was mentioned, some of the people at the meeting went for him from his home. He followed the people and found them assaulting Ringetiang. They then tied him and escorted him to the scene. At around 7pm, police officers arrived at the scene and attempted to rescue Murketiang and Ringetiang but they were repulsed by the hostile mob. After the police left, the hands of Murketiang and Ringetiang were tied using mosquito nets and they were put inside a tyre. The Accused then came with petrol and poured it on them. Thereafter, Losianyang set the two on fire. The witness testified that it was at that juncture that he ran away. According to the witness, before the deceased persons were set ablaze a big fire had been lit and the fire acted as a source of light. PW3 identified the Accused in Court.

12. When questioned by the Court, PW3 testified that he was about 6 meters from where the Accused was pouring petrol on the deceased persons.

13. On cross-examination by the defence, PW2 stated that the Accused was not among those who assaulted the deceased but he was the person who poured petrol on him. He told the Court that the Accused was present at the time the deceased was fetched from his house and brought to the scene. His testimony was that it was getting dark when the deceased persons were set on fire but there was a big fire that had been lit prior to the burning of the deceased persons. He also testified that he had not seen the Accused with petrol before he came and poured it on the deceased persons.

14. PW4 Festus Eyier Domokamar testified that on 28^th December, 2017, Losianyang accompanied by others arrested Murketiang and Ringetiang on allegation that the two practised witchcraft. His testimony was that the Accused who was a neighbor was in the crowd that made the witchcraft allegation. He told the Court that at one time police officers came to the scene but they were chased away by the mob. After that, Rionongura and Chemogh tied Murketiang and Ringetiang. PW4 testified that he then saw the Accused pour petrol on Murketiang and Ringetiang and thereafter Losianyang lit a match on the two. PW4 told the Court that he was able to see the event which occurred at about 8pm because he was standing 4-5 meters from the scene.

15. On cross-examination, PW4 testified that he had known the Accused who was older than him from his childhood. He also testified that there were many people at the scene and that the discussion at the scene was about witchcraft. PW4 told the Court the deceased was his grandfather.

16. The prosecution also called PW5 Dr. Jotham Mukhola who told the Court that on 3^rd January, 2018 he conducted postmortem on the body of the deceased at Kapenguria County Referral Hospital in a bid to ascertain the cause of death. The body was of a male African aged 72 years, 6 feet tall, well-nourished and of good build. On examination, he found partly burnt pieces of mosquito net with different degrees of burns affecting 60% of the body.

17. PW5 testified that he established that the inner ear, upper lip and frontal scalp were completely burnt. Other injuries noted were that the upper limbs of the deceased had second degree burns, left hand had third degree burns with exposed thumb bone, there was depressed fracture on the frontal bone and obvious fracture of lower right mandible. He also established that the whole body had varying degree of burns, multiple bruises on lower limbs, body and upper limbs.

18. Due to the existence of carbon deposits in the lungs, PW5 formed the opinion that the deceased was set ablaze while still alive. He also found a raptured spleen and blood in the abdomen, fracture on the head, blood clot under frontal and side bones. He formed the opinion that the deceased’s cause of death was acute severe abdominal and ultra-cranial haemorrhage as a result of blunt trauma and accompanying extensive burns affecting more than 60% of the body. He produced the postmortem report as an exhibit.

19. On cross-examination, PW5 told the Court that the body had other injuries including complete burns of the ear, upper lip, frontal scalp and the nostrils. He also testified that there was bleeding inside the brain and that if he had not been burned, the deceased may as well have died of the other injuries if no medical attention was offered to him.

20. PW6 Corporal Sabian Odongo testified that on 28^th December, 2017, he received a report from one Emily Chepkemoi that her father was being attacked by a mob at Chepkuikui Village. Alongside other police officers, they rushed to the scene. When the people saw them, they became violent and chased them away. He later learnt from some eyewitnesses that the deceased was set ablaze as soon as the police had gone. During his investigations, he was given the names of 8 people, including the Accused, as among those who participated in the killing the deceased.

21. PW6 testified that in 2018, he arrested and arraigned three suspects who had participated in the killing of the deceased persons in Kapenguria High Court Criminal Case No. 5 of 2018. He also testified that it was only members of the family of the deceased who volunteered to record statements and that is why he only pursued the killing of Ringetiang Tomeluk and did not charge anyone with the killing of Muketiang. He testified that on 1^st October, 2019, the Accused was arrested and charged with the murder of the deceased.  

22. On cross-examination, PW6 testified that they arrived at the scene at 8pm when it was already dark and that the deceased was being attacked by a mob. PW6 stated that the incident occurred at Chepkuikui Village. He testified that even though he was not at the scene, his investigations revealed that the deceased persons had been accused of practising witchcraft. His testimony was that he did not identify the individuals who formed the mob as they were chased away after being there for about five minutes. PW6 told the Court that he only recorded statements from the relatives of the Ringetiang Tomeluk as they are the only witnesses who volunteered to record statements.

23. The Accused gave unsworn testimony in his defence as DW1. He told the Court that he did not remember the events of 28^th December, 2017. He narrated that on 1^st October, 2019, he was taking chang’aa at mama Kibet’s place when police officers arrived and arrested him alongside other people. They were taken to Sigor Police Station from where they were taken to Kapenguria Law Courts the next day. His evidence was that upon arrival at Kapenguria, he was separated from the others and escorted to Kapenguria County Referral Hospital and later taken to Court at 1pm where he learnt that he was being accused of murdering Ringetiang Tomeluk. The Accused told the Court that he had been given the alias Siwakapel Tumorio while his names were Alexander Pkemei Kamerimuk as per his national identity card and that Siwakapel Tomeluk was someone else in the village.

24. At the close of the defence case, counsel for the Accused asked for time to file submissions but on 19^th October, 2021 he requested the Court to reserve the matter for judgement as the defence did not intend to file any submissions. The prosecutor likewise informed the Court that he was not going to file any submissions and would instead rely on the evidence on record.

25. Considering the evidence adduced in this case, it becomes clear that the issue for the determination of this Court is whether the prosecution has established the charge of murder and linked the Accused to the commission of that offence.   

26. Through PW5, the prosecution has established that indeed a death certificate was issued confirming the death of the deceased. PW5 also adduced evidence that confirms that the deceased died as a result of acute severe abdominal and ultra-cranial haemorrhage as a result of blunt trauma accompanied by extensive burns affecting more than 60% of the body. During his testimony, PW5 recounted the injuries that he noted during the postmortem procedure and captured those injuries in the postmortem report. PW5 also confirmed that from his investigations the deceased was set ablaze while still alive. He also testified that the injuries inflicted on the deceased before he was set on fire could as well have caused his death if no medical attention was offered to him.

27. On their part PW2, PW3 and PW4 all testified that the deceased was killed by a mob. Their testimony was that one of the members of the mob, whom they identified as the Accused, is the one who poured petrol on the two victims before another person struck the match stick that caused the fire which burned them to death. The witnesses told the Court that they could do nothing to rescue the victims since the people were wild and could have easily turned against them. The presence of a wild mob was confirmed by PW6 who visited the scene with other police officers in an attempt to rescue the victims but they were chased away. PW2, PW3 and PW4 told the Court that the Accused was not among the people who went to fetch the deceased from his home.

28. From the questions put to the prosecution witnesses by counsel for the Accused, the impression created is that the Accused may not have been identified because the deceased was set on fire at night. It is, however, observed that the testimony of PW2, PW3 and PW4 was that the Accused was known to them prior to the incident. Additionally, the three witnesses stated that they were at the scene during the day and they had seen the Accused. The three witnesses further told the Court that before the burning of the deceased, a fire had been lit at the scene and the same acted as a source of light. The witnesses were clear in their testimony that they saw the Accused pouring petrol on the victims before another member of the crowd set them on fire. The testimony remains uncontroverted as the Accused did not say anything about the events of 27^th December, 2017.

29. The evidence of PW2, PW3 and PW4 is that of recognition as the Accused was well-known to them prior to the commission of the offence. I therefore find this to be a case of recognition rather than identification. In Reuben Taabu Anjononi & 2 others v Republic [1980] eKLR, the Court of Appeal stated as follows:

“Being night time the conditions for identification of the robbers in this case were not favourable. This was, however, a case of recognition, not identification, of the assailants; recognition of an assailant is more satisfactory, more assuring, and more reliable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or other.”

30. In this case, I am inclined to believe the account of the prosecution witnesses on the events of 27^th December, 2017. PW2 testified that she was about 4 meters away when the victims were set on fire. PW3 was 6 meters away and PW4 was about 4-5 meters away. They told the Court that there was light from a huge fire that had been lit before the deceased persons were set on fire. The circumstances were therefore favorable for the identification of the Accused by the three witnesses who knew him before the material day. On his part, PW6 was honest that he did not identify the individuals who made up the mob as he was at the scene briefly before being chased away. The evidence of PW2, PW3 and PW4 therefore squarely placed the Accused at the scene of crime.

31. The remaining question is whether the evidence adduced by the prosecution establishes the offence of murder. Malice aforethought is a crucial ingredient of the offence of murder. This statement of the law was reiterated by the Court of Appeal in Roba Galma Wario v Republic [2015] eKLR when it held that:

“For the conviction of murder to be sustained, it is imperative to prove that the death of the deceased was caused by the appellant; and that he had the required malice aforethought. Without malice aforethought, the appellant would be guilty of manslaughter, as it would mean the death of the deceased during the brawl was not intentional.”

32. Section 206 of the Penal Code provides the ingredients of malice aforethought 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.

33. In considering whether the Accused had malice aforethought this Court has to take into account the circumstances of the case. In N M W v Republic [2018] eKLR the Court of Appeal cited with approval the holding in Bonaya Tutu Ipu & another v Republic [2015] eKLR that:

“It is in rare circumstances that the intention to cause death is proved by direct evidence. More frequently, that intention is established by or inferred from the surrounding circumstances. In the persuasive decision of CHESAKIT V. UGANDA, CR. APP. NO. 95 OF 2004, the Court of Appeal of Uganda stated that in determining in a charge of murder whether malice aforethought has been proved, the court must take into account factors such as the part of the body injured, the type of weapon used, if any, the type of injuries inflicted upon the deceased and the subsequent conduct of the accused person.”

34. In this case, PW2, PW3, and PW4 all testified that the Accused was in the meeting where Murketiang was being ‘tried’ on allegation of engaging in witchcraft. It was in the meeting that the deceased was later murdered after being accused of engaging in witchcraft. It was also the evidence of PW2, PW3, and PW4 that the Accused poured petrol on the deceased persons before they were set ablaze. The Accused offered no explanation or rebuttal to this evidence. It is therefore clear to this Court that the Accused had the intention of causing death or grievous harm to the deceased and therefore had malice aforethought.

35. Although the Accused did not strike the match stick that imperiled the life of the victims, Section 21 of the Penal Code, Cap. 63 deems him to have committed the offence of murder. The provision states as follows:

“When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.”

36. The Court of Appeal considered the doctrine of common intention in the case of Dickson Mwangi Munene & another v Republic [2014] eKLR and stated that:

“This provision has been interpreted and the doctrine of common intention dealt with by our courts in several cases. In Solomon Mungai v. Republic [1965] E.A. 363, the predecessor of this Court held that in order for this section to apply, it must be shown that the accused had shared with the other perpetrators of the crime a common intention to pursue a specific unlawful purpose which led to the commission of the offence charged.”

37. In Stephen Ariga & another v Republic [2018] eKLR, the Court of Appeal adopted the ingredients of common intention as established in Eunice Musenya Ndui v Republic [2011] eKLR thus:

(1) There must be two or more persons;

(2) The persons must form a common intention;

(3) The common intention must be towards prosecuting an unlawful purpose in conjunction with one another;

(4) An offence must be committed in the process;

(5) The offence must be of such a nature that its commission was a probable consequence of the prosecution of the unlawful purpose.

38. The Court continued and addressed itself on the 2^nd and 3^rd ingredients as follows:

“The second ingredient requires the forming of the common intention. It does not say that the said forming of a common intention must be before the execution of the act complained of. Both appellants were categorical in their testimonies and correctly so in our view, that their sole but separately formed reason for shooting at P.W.2’s vehicle from the rear was to immobilize it. There is no evidence that the two consulted each other before firing at P.W.2’s vehicle. The common intention which was to immobilize the vehicle was formed in the course of their separately intending to shoot at the rear of the vehicle with a view to immobilizing it. Ingredient two (2) is therefore also satisfied.

As for the 3rd ingredient, the unlawful purpose in the instant appeal does not result from the decision to shoot but from the end result of the shooting act complained of. We find nothing in the said ingredient to suggest that the unlawfulness of the act complained of can only result from factors that go to prove the onset of the action and not from the end result of the action. We find ingredient three (3) satisfied.”

39. Based on the circumstances of this case and the evidence adduced, I find that the Accused shared a common intention with the mob. Their project was to take away the lives of the victims. I also find that even though the Accused did not light the fire that consumed the victims, he provided a conducive environment under which the murder of the deceased was achieved. He was not pouring petrol on the victims so as to exorcise the spirit of bewitching others. He knew that the purpose of the petrol was so that the deceased and the other victim would be burnt to death. He therefore shared a common intention which was to have the deceased killed and they indeed succeeded in doing so.

40. There was the claim by the Accused in his defence that there was an individual in the village known as Siwakapel Tomeluk and that he had been arrested falsely. This defence cannot hold in view of the clear testimony of PW2, PW3 and PW4 that they knew the Accused whom they kept referring to by his alias Siwakapel. As already stated, his identification by the witnesses was not in doubt and they could not have mistaken him for anyone else.

41. It is also observed that the issue of the alleged existence of another person with a name similar to the Accused’s alias was only brought up during the defence hence denying the prosecution and its witnesses an opportunity to rebut the evidence. In the circumstances, this particular evidence can only be treated as an afterthought. The Accused’s defence in its entirety amounts to mere denial which cannot upset the cogent evidence adduced by the State against him. I therefore find his defence unbelievable and I reject it.

42. Considering what I have stated in this judgement, it follows that the prosecution has proved their case against the Accused. I therefore find the Accused, Alexander Pkemei Kamerimuk alias Siwakapel Tumorio, guilty of murder contrary to Section 203 as read with Section 204 of the Penal Code and I convict him accordingly.

DATED, SIGNED AND DELIVERED AT KAPENGURIA THIS 10^TH DAY OF FEBRUARY, 2022.

W. Korir,

Judge of the High Court