[2006] KEHC 1174 (KLR)
The court found that the prosecution failed to establish a prima facie case against the accused. The evidence presented did not connect the accused to the offence of murder, as the only eyewitness did not witness the incident and the evidence of the third witness was inadmissible due to lack of cross-examination....
Source-derived case information.
- Citation
- [2006] KEHC 1174 (KLR)
- Parties
- Accused: Ayub Hussein; Prosecutor: Republic
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 23 of 2002
- Procedural Posture
- Criminal Case / Ruling on No Case to Answer
- Outcome
- acquittal
- Legal Topics
- Murder, Standard of Proof, Evidentiary Requirements, Acquittal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ayub Hussein
Accused
Republic
Prosecutor
Procedural Posture
Criminal Case / Ruling on No Case to Answer
Legal Issues
- 1 Whether the prosecution established a prima facie case against the accused to require him to make a defence.
- 2 Whether the evidence adduced connected the accused to the offence of murder.
Ratio Decidendi
The court found that the prosecution failed to establish a prima facie case against the accused. The evidence presented did not connect the accused to the offence of murder, as the only eyewitness did not witness the incident and the evidence of the third witness was inadmissible due to lack of cross-examination. The prosecution also failed to call crucial witnesses, and the cause of death or the person responsible could not be established from the evidence on record. Consequently, the accused was acquitted as no case was made out to require him to make a defence.
Court Disposition
acquittal
Orders
- The charge against the accused is dismissed.
- The accused is acquitted of the charge.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAKURU
Criminal Case 23 of 2002
AYUB HUSSEIN …....…………...............……..…………………….….. ACCUSED
VERSUS
REPUBLIC ……………................……………...…………………. PROSECUTOR
RULING
The accused was arraigned in court on 23rd May 2002 and he was charged with the offence of murder contrary to Section 204 of the Penal Code.
The particulars of the charge are that on the 11th day of August, 2000 at Mwariki Estate in Nakuru District of the Rift Valley Province, murdered Gerald Kamau Muturi.
The prosecution called three witnesses but the evidence by the third witness, Police constable, Ali Wambete (PW 3) is of no evidential value as he as not available for cross-examination. I will therefore evaluate the evidence of Juliana Anyango (PW 1). According to PW 1, she was at the her house at Mwariki Estate on 11th August 2000 when the wife of the Caretaker of the premises where they were tenants stormed into her house and told her that there were people fighting in her house. This witness did not leave her room but about thirty minutes the Caretaker came and borrowed a match box to light a lantern. Thereafter this witness told the court that she heard the caretaker and his wife screaming and shouting that the owner of the plot was beaten by Ayub. The owner of the plot was the deceased in this case. PW 1 said she immediately left the premises and travelled to attend a funeral arrangement meeting at another venue. It was not until the next day when she returned home, she learnt that Kamau was killed in the house of the Caretaker.
During cross-examination, PW 1 confirmed that the caretaker used to brew illicit drinks and that people used to drink there. She however confirmed that she never witnessed the fighting as she remained in her house.
Charles Mwangi Muturi (PW 2) is the brother of the deceased. On the 12th August 2001, he was called by his wife and informed that the deceased was killed. He identified the body of the deceased at the mortuary when the postmortem was conducted.
The prosecution closed its case at this stage and as I pointed out earlier since the veracity of the evidence of PW 3 was not tested through cross-examination the same is of no consequence.
From the evidence on record it is impossible for the court to know the cause of the deceased death or who caused it. The prosecution failed to call crucial witnesses and in this case, the case was not proved to the required standard. The evidence of PW 1 does not connect the accused person with the offence. In this case no case has been made out against the accused person sufficiently to require him to make a defence. I accordingly dismiss the charge against the accused person and acquit him of the charge.
It is so ordered.
Ruling read and delivered at Nakuru on 20th July 2006.
MARTHA KOOME
JUDGE
Assessors allowances for today be paid.
MARTHA KOOME
JUDGE