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|Case Number:||Criminal Case 21 of 2008|
|Parties:||REPUBLIC v DAVID MURIUKI GICHIRA & JOSEPH LEMOI KARUJA|
|Date Delivered:||23 Dec 2010|
|Court:||High Court at Eldoret|
|Judge(s):||Philomena Mbete Mwilu|
|Citation:||REPUBLIC v DAVID MURIUKI GICHIRA & another  eKLR|
|Advocates:||Mr. Magare for the accused|
|Advocates:||Mr. Magare for the accused|
|History Advocates:||One party or some parties represented|
|Case Outcome:||Accused acquitted|
|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|
IN THE HIGH COURT OF KENYA
JOSEPH LEMOI KARUJA.........................................2ND ACCUSED
The particulars of the offence are that on the 5th day of May, 2008 at Lorian Trading Centre in Uasin Gishu District within the Rift Valley province jointly murdered PHILEMON KIPROTICH SINGOEI.
PWI DAVID KIMUTAI was a shopkeeper at Lorian Trading Centre and he knew the deceased as well as the two accused persons who were Administration Police officers stationed at Lorian AP camp for three months prior to the incident of 5/5/2008. On that date at about 6.00 p.m. the witness was inside his shop when he heard noise emanating from a bar directly opposite his shop. Shortly afterwards he saw the first accused come out of the bar shouting “mtaniona leo” Kiswahili for, you will see me today. The 1st accused then proceeded to the AP camp about 50 meters away and after about five minutes the witness heard gun shots emanating from the AP camp. The witness closed his shop and ran away for safety. When he came back thirty (30) minutes later he saw the deceased lying outside at the trading centre, with a bleeding hole at his back. The witness did not know if the deceased was inside the bar. He did not know who shot the deceased. The accused persons were part of the Administration Police officers brought to the area to help keep the peace after the 2007 Post Election Violence. The Lorian AP camp where the accused persons were based was established in January, 2008, the witness concluded.
Councillor Elijah Lagat of Tarakwa ward gave his evidence as PW3 and he was telephoned by a person called Kiprono to be told that there was gun shooting from the AP camp at Lorian and someone had been shot. He advised Kiprono that they take the injured person to hospital. He later attended the postmortem on the body of the deceased on 8/5/2008 and he saw a bullet being removed from the deceased’s body. He did not know who had shot the deceased.
PW6 Dr. Ndegwa Macharia Benson conducted the postmortem on the body of the deceased and found an entry gunshot wound at the back of the deceased’s chest and that the bullet had passed through soft tissues around the spinal cord and entered the thoracic cavity then went through the left lung before getting lodged in the front side of the chest causing total collapse of the left lung. He formed the opinion that the cause of death was massive bleeding due to chest injury due to a gun shot wound. He retrieved a single bullet from the body and he said that he could not tell the approximate time of death.
PW8 was the firearms examiner, one EMMANUAL LAGAT. He gave evidence and produced the report made by J.M. Mwongela the officer in charge of ballistics and who on 19/06/2008 had examined the two G3 riffle serial numbers A 3659626 and FMP 402802. The ballistics report was that the bullet that was removed from the deceased’s body could have been fired from any of the two G3 riffles but that it was not suitable for miscroscopic comparisons.
PW10 No. 51981 Corporal Fredrick Walela was the last prosecution witness. He is the one who produced the firearms in evidence and he was the one who had earlier taken them to J.M. Mwongela the ballistics expert for examination. His evidence was that it was the two accused persons who fired their guns alleging that they had been attacked by members of the public with whom they had a misunderstanding in a bar but that the deceased was not among those that the accused persons said they had disagreed with. He said that the shooting was inside the AP camp which was about 50 meters from where the body of the deceased was lying.
The above is the prosecution evidence that has to be assessed to show whether or not a case is made out to require the accused persons to be placed on their defence. The accused persons are charged with the offence of murder and available evidence must show that they, with malice aforethought caused the death of the deceased. Anything short of that and falling bellow the test of beyond reasonable doubt will not do.
The undisputed facts are that the deceased lay dying and was soon dead behind a shop near the Lorian AP camp soon after one of the accused persons herein left a bar at the Lorian Trading Centre shouting “mtaniona leo.” That the deceased person’s death was caused by a single bullet shot into his body through the back of his chest. The bullet was fired from a G3 riffle. That bullet could have been fired from any of the two G3 riffles produced in court. That no one saw any of the accused persons shoot the deceased. That no one told of which of the two riffles fired the fatal bullet.
Only one bullet was recovered from the body of the deceased. From what rifle was that bullet fired? That was not shown. The two accused persons herein are charged with “jointly” murdering the deceased. There was no evidence led to show that the two accused persons “jointly” pulled the trigger of some rifle from which a bullet was fired and which single bullet caused the unlawful death of the deceased. There was no attempt by the prosecution to show that the two accused persons acted in common intent with a common purpose – that of causing the death of the deceased. And that one bullet fired from whatever rifle was so extensively damaged that it was not suitable for miscroscopic comparison with the ones availed to the ballistic expert. In these circumstances therefore there was not shown to be any nexus firstly between the accused persons and the rifles as it was not shown which rifle was issued to what accused person or what rifle was recovered from what accused and secondly there was not shown any nexus between the rifles and the fatal bullet.
It is my finding that the prosecution have totally failed to make out a prima facie case against the accused persons and I accordingly record a finding of not guilty and find that the accused persons have no case to answer. Accordingly I hereby acquit each and both of the accused persons of the charge of the murder of Philemon Kiprotich Singoei under section 306(I) of the Criminal Procedure Code. I order that the accused persons shall forthwith be released from custody unless they be otherwise legally held.
DATED SIGNED AND DELIVERED AT ELDORET THIS 23RD DAY OF DECEMBER, 2010.