Burden of proving malice in a murder case

By Wahome Thuku

One evening in March 2003 in Bureti District, Rono joined other village mates in drinking illicit brew at a local bar.

The brew is commonly known as miti ni dawa.

In the course of drinking, at around 7pm a young man by the name Stephen who had been overwhelmed by the alcohol became rowdy and began kicking other patrons indiscriminately.

He kicked at least five men; Kiprotich, Langat, Ng’eno, Bii and Yegon.

As the commotion escalated, Rono who was standing near the counter drew a knife and stabbed Kipkemoi in the chest. He also stabbed Kiprotich in the stomach and seriously injured him. It was not clear why he did it and whether the attack was connected to the commotion started by Stephen.

Both Kipkemoi and Kiprotich were rushed to a local hospital. Kipkemoi died on the way but Kiprotich was admitted for a month.

Rono was arrested immediately and locked up at the police station. A post-mortem examination revealed that Kipkemoi died of cardio-respiratory arrest as a result of excessive bleeding following a stab wound in the chest.

Rono was charged with murder at the High Court in Kericho. The five men in the bar testified in the trial. They told the court that they were all village mates and knew each other very well.

They all testified of having seen Rono stab Kipkemoi in the chest. The bar was well lit with a pressure lamp.

In his defence, Rono admitted having been drinking with the five witnesses but denied that he stabbed Kipkemoi.

After all the witnesses had testified, the judge summed up the evidence for the three assessors hearing the case with her.

Alcohol influence

But she failed to direct the assessors that while considering their verdict, they should consider the fact that the accused might have been drunk during the incidence. The assessors returned a unanimous verdict of guilty of murder as charged.

The judge concurred and in October 2007, Rono was convicted and sentenced to death.

He appealed and three Court of Appeal judges in Nakuru heard the case.

His lawyer argued that the High Court judge had misdirected herself in failing to consider that there was no proof that Rono had an intention to kill Kipkemoi.

The State lawyer conceded saying that the facts as established before the trial court could not sustain conviction for murder. They could only sustain a conviction for the lesser charge of manslaughter due to intoxication.

In May, this year, the judges gave their verdict.

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