|Criminal Appeal 50 of 2009
|PASCAL KILIMO KIPLANGAT & DANIEL KIPKOECH v REPUBLIC
|23 Dec 2010
|High Court at Eldoret
|Philomena Mbete Mwilu
|PASCAL KILIMO KIPLANGAT & another v REPUBLIC  eKLR
|Mr. Kabaka – State Counsel
|(Being an appeal against Judgment from Eldoret Chief Magistrate’s Court Criminal Case No.4144 /2008 delivered by HON. N. SHIUNDU (SRM) on 19th March 2009)
|Individual v Government
|Mr. Kabaka – State Counsel
|History Docket No:
|Criminal Case No.4144 /2008
|HON. N. SHIUNDU
|One party or some parties represented
|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
PASCAL KILIMO KIPLANGAT
(Being an appeal against Judgment from Eldoret Chief Magistrate’s Court Criminal Case No.4144 /2008
delivered by HON. N. SHIUNDU (SRM) on 19th March 2009)
The particulars of the offence were that on the 20th day of August, 2008, at Kapindani village in Uasin Gishu District of the Rift Valley Province jointly and unlawfully killed BRIAN KIPCHUMBA CHERUIYOT.
The facts leading to the conviction were that on 20.08.2008 at about 11.p.m. neighbours of the 1st accused heard screams from his house and PW1 Edwin Koech Cheruiyot went to check what was happening. On the way he met a young man called Kiplimo who informed him that the 1st accused’s home had been attacked by Kipchumba and his brother Kiprop. He proceeded and was joined by many other neighbours. On arrival at the 1st accused’s homestead they found the deceased lying down on the ground and a person called Kiprop was sitting next to the deceased. PW1 gave evidence that the two accused persons were involved in a fight with the deceased and Kiprop.
According to PW1 the 1st accused was unarmed but the 2nd accused had a stick. The deceased was bleeding from the scalp but Kiprop appeared to have no injuries. PW1 and a neighbour called Musa went to report the incident to the village elder called Chepkonga whom they found feeling unwell. They left him at his home and the duo went back to the scene where they put the deceased in a house due to impending rain and they went to Jennifer’s house, a neighbour, where they sheltered themselves from the rain and PW1 went to his home once the rain was over. He was to learn the next day that the deceased had died and his body had been taken away by the police and Kiprop was taken to hospital. PW1 said on cross examination that he did not know who had started the fight among his neighbours.
The village elder to whom PW1 and PW2 reported the incident on the night of 20.08.2008 gave his evidence as the third prosecution witness and his evidence was that he was unwell when the report was made to him and so did not accompany the reporters but that early the next morning he went to the scene, the home of Kiplimo the 1st appellant. He found the door to the house open. The deceased’s body was on the floor and Kiprop, whom the witness said was the deceased’s brother, was seated next to the deceased crying in pain. Outside people were screaming. The witness called a neighbour called Ben Kandie who helped him put Kiprop in a vehicle. His further evidence was that while at the scene that morning the 1st appellant emerged from the crowd of people and told the witness that it was he, 1st appellant, who had killed the deceased and 1st appellant showed the witness a metal bar, a panga and a belt which the appellant said the deceased and Kiprop had. The witness did not see the 2nd appellant at the scene that morning. All that the 1st appellant asked the witness in cross examination was when the witness had come to the scene and the answer was that the witness only went to the scene the morning following the incident and therefore did not witness what happened.
Dr. Joseph Embenzi gave evidence as PW5. He produced the post mortem report on the deceased. It was done by Dr. Nalianya. The date of post mortem was given as 19.08.2008 and showed a body smeared with dry blood and with a laceration on the head, bleeding under the skin on the upper and lower limps, dislocation of the ribs and bleeding in the spaces between the ribs. The cause of death was given as multiple injuries due to assault.
PW7 was Derrick Kiprop Cheruiyot who said that on the night of 19.08.2008 at about 9.00 p.m. he was leaving the SEARCH 4 shops with his brother Brian Kipchumba Cheruiyot. On their way they came along the home of the 1st appellant. The 1st appellant then went and hit the witness on his legs with a stick. The 1st appellant was in the company of the 2nd appellant. The appellants then dragged the witness and the deceased to the homestead of 1st appellant. That homestead was about 10 yards from the path the witness and the deceased were walking on when first attacked. At the homestead the 2nd appellant pulled out a panga. The witness and the deceased were then beaten by the appellant. The first appellant was armed with a piece of wood with which he beat the duo and he later collected an iron rod. The 1st appellant said that he had looked for the deceased for a long time and now he had got him. The witness told court that he was beaten on his legs, month, stomach and the back. They were locked inside the 1st appellant’s house. Witness lost consciousness and when he came to the next day he found his brother the deceased herein lying next to him naked. He screamed and neighbours came and he saw one Chepsengeny who took the witness to Moi Teaching and Referral Hospital where he was admitted for six days. In cross examination the witness maintained that they (he and deceased) were attacked on the path as they walked home and that they never attacked the 1st appellant as he alleged.
PW9 was the scenes of crime officer who photographed the scene and the naked body of the deceased and produced the photographs in evidence.
The 2nd appellant’s defence was that he was at work when at 4 p.m. on 19.08.2008 he was called by a neighbour who told him that the 1st appellant had been attacked and so he decided to go and find out what happened. On arrival he found that the deceased was injured and he told the people gathered at the scene to report to the village elder and he saw the attackers were locked in a house. He went away back to work until 6.30 p.m. the next day. He drank some changaa and he collapsed and when he came to he found himself at Moi Teaching and Referral Hospital from where he was charged and arrested.
I have, as is required of me, fully assessed the evidence at trial and subjected the same to thorough scrutiny and evaluation and having done so I come to the following findings.
When PW3 said in his evidence that the 1st appellant emerged at the scene and showed him the weapons with which the deceased and PW7 allegedly attacked him and then the 1st appellant said he had killed the deceased, the 1st appellant did not ask the witness (PW3) a single question in cross examination on this very important aspect of his admission of the offence. I find that if the 1st appellant had never told the witness that then the 1st appellant would have grilled PW3 thoroughly on it. That he did not must be held against the 1st appellant and the necessary inference drawn, and I am satisfied that it was not a matter the 1st appellant would have missed to take up with the witness had he never said it at the scene.
The appellants did not attack the term of the sentenced meted out to them and similarly I do not. For having killed the young deceased herein who was only 18 years old and having assaulted the PW7 causing him to be admitted in hospital for six (6) days although they were not charged with the assault, a term of twenty years (20) imprisonment was light, although a correct sentence in law.
It is so ordered.