|Criminal Case 38 of 2006
|REPUBLIC v SAMWEL NGOROK TILITAI
|08 Apr 2011
|High Court at Kitale
|Martha Karambu Koome
|REPUBLIC v SAMWEL NGOROK TILITAI  eKLR
J U D G M EN T.
2. PW1, WILLIAM KIBET TUIYOT, testified that on the material night, he was watching a football march on television at the Paraywa Trading Centre. He was in the company of many other persons, when they heard screams from the direction of the house in which the deceased was resident.PW1 went towards the direction from where the screams came from, and upon arrival, they found that the deceased had been shot with an arrow. PW1, together with the other people who had earlier been watching football, noted that the deceased was bleeding from his stomach. They then used a curtain to bandage the wound, to try and stem the bleeding.PW1 then telephoned PW2, FRED KIMUYI LOREMA, who was the Assistant chief of Paraywa sub-location. PW2 owned a vehicle, and he was requested to use it to take the deceased to hospital. Both PW1 and PW2 confirmed that he deceased was rushed to the Kapenguia District Hospital, for treatment.
4. PW2 testified about how he was asked to help take the deceased to hospital, in his vehicle. He also testified that he did question the accused about the incident in question. According to PW2, the accused did admit that on the night of 23rd January, 2006, when the deceased was shot with an arrow, he (the accused) was not at the school, at the material time.
5. When PW3 interviewed the deceased, in hospital, he was told that it was the accused who had shot him. On 25th January, 2006, the accused was arrested. He was then charged with attempted murder. But later, when the deceased passed away, on 20th August, 2006, the charge was changed to one of murder. PW4, PROFFESSOR VOLODIMIR KOSLOV, is a medical doctor and a lecturer at the Moi School of Medicine, Moi University. He testified that the deceased,when examined on 24th January, 2006, was found to have a wound in his abdomen. The abdominal cavity had 2 litres of blood and the intestines were damaged. Three days later, the patient developed wound sepsis. Thereafter, even whilst undergoing treatment, the edges of the wound separated, and the patient developed adhesions. As a result of all these developments, the patient was re-admitted to hospital on several occasions after being discharged. On 11th August, 2006, the patient was re-admitted after he developed Hepatitis (which is the inflammation of the liver), and partial obstruction of the intestines.
7. Thereafter, the accused gave an unsworn defence. He said that he used to be a watchman at Paraywa Primary School. It was his evidence that the only tools or weapons that he used to have in the course of his duty, as the watchman, were a panga and a rungu. He denied ever having had any bow or arrows at the school. On the material night, the accused says that he stayed within the school compound the whole night. On the next morning, PW2 arrived at the school, as the accused was carrying on with his regular duties. According to the accused, the Assistant chief asked him if he had been at the Paraywa trading centre on the previous night. But the accused says that he told the Assistant Chief (PW2) that he had not been to the centre. The accused said that he was shocked to learn from PW2, that the deceased had been shot with an arrow. It was the evidence of the accused that the deceased had personally encouraged him to apply for the job of the watchman. In other words, it appears that the accused was refuting the assertion that he might have had a reason for wanting to attack the deceased.
“I was having a torch on my left hand and the waste vegetable was on my right hand. I then lit a torch towards where the arrow was coming from and I saw the suspect while armed with arrows and a bow, leaving a small kitchen which was infront of my rented house. I identified him positively to be my watchmen by the name of SAMWEL RIAMANYANG NGOROK.”
10. I have evaluated the evidence in this matter which was heard and finalized by my predecessor Ochieng – J. except that he did not sum it up to the assessors, I agree with the verdict of the assessors for the following reasons:-
11. The evidence of suspicion and the dying declaration have to be examined further because the deceased was attached after 8.00 p.m. according to PW1 and PW2 who rescued the deceased and they took him to the hospital. The deceased said he used a torch to identify his attacker. There was no evidence to test the lighting that was emitted from the deceased’s torch, and even the distance from where the deceased was, when he was shot with an arrow. According to the principles set out regarding identification by a single witness, even if the deceased had seen the accused person he did not testify in court and his dying declaration ought to be corroborated by other evidence because there is a possibility that the deceased was mistaken.
12. Accordingly the circumstantial evidence that was meant to connect the accused person with the death of the deceased also falls on the way side. Taking the totality before the court there are serious doubts in my mind whether it is the accused person who shot the deceased. I find there is a possibility of mistaken identity because the circumstances for a positive identification were difficult as the offence took place at night. For the above reasons I concur with the assessors that the accused person is not guilty and I hereby acquit him of the charge of murder.