[2023] KEHC 26643 (KLR)
The prosecution failed to present sufficient evidence to establish a prima facie case against the accused for the offence of murder. Only the investigating officer testified, and no other witnesses could be traced. The accused has consistently attended court for over two and a half years. In the absence of evidence...
Source-derived case information.
- Citation
- [2023] KEHC 26643 (KLR)
- Parties
- Applicant: Director of Public Prosecution; Defendant: David Gathura M’ikinitia alias Dauti
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Criminal Case E006 of 2021
- Procedural Posture
- Criminal Case / Ruling on No Case to Answer
- Outcome
- acquittal
- Judges
- TW Cherere
- Legal Topics
- Murder Charge, Acquittal, Right to Life, Criminal Procedure, Failure to Call Witnesses
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Director of Public Prosecution
Applicant
David Gathura M’ikinitia alias Dauti
Defendant
Procedural Posture
Criminal Case / Ruling on No Case to Answer
Legal Issues
- 1 Whether the prosecution established a prima facie case against the accused for the offence of murder.
- 2 Whether the accused should be put on his defence or acquitted under section 306(1) of the Criminal Procedure Code.
Ratio Decidendi
The prosecution failed to present sufficient evidence to establish a prima facie case against the accused for the offence of murder. Only the investigating officer testified, and no other witnesses could be traced. The accused has consistently attended court for over two and a half years. In the absence of evidence linking the accused to the alleged murder, the court found that the interests of justice required an acquittal. Accordingly, under section 306(1) of the Criminal Procedure Code, the accused was found not guilty and ordered to be set at liberty unless otherwise lawfully held.
Court Disposition
acquittal
Orders
- The accused is found not guilty under section 306(1) of the Criminal Procedure Code.
- The accused is to be set at liberty unless otherwise lawfully held.
Full Case Text
Judgment text and source record
21 paragraphs
Director of Public Prosecution v M’ikinitia (Criminal Case E006 of 2021) [2023] KEHC 26643 (KLR) (20 December 2023) (Ruling)
Neutral citation: [2023] KEHC 26643 (KLR)
Republic of Kenya
In the High Court at Meru
Criminal Case E006 of 2021
TW Cherere, J
December 20, 2023
Between
Director of Public Prosecution
Prosecutor
and
David Gathura M’ikinitia alias Dauti
Accused
Ruling
1. David Gathura M’ikinitia alias Dauti (accused) is charged with the offence of Murder Contrary to section 203 as read with section 204 of the Penal Code.The particulars of the charge are that on 3oth June, 2020 at Leeta village, Amwathim1 sublocation, Kabachi location, Igembe Sub-County within Meru County murdered Jeremiah Marisello
2. Accused denied committing the offence. The case was fixed for hearing on numerous occasions but as at December 11, 2023 when the prosecution closed its case, only the investigating officer had testified.
3. The trial court record reveals that Accused was charged over 2 ½ years ago and has faithfully attended court. At the time of closing its case, Ms. Rita for the prosecution informed court that the other witnesses could not be traced.
4. Right to life is protected by article 26 of the Constitution and can only be taken away under the circumstances provided therein. It therefore means that every homicide is unlawful unless authorized by law or excusable under the law. (See Guzambizi Wesonga v Republic [1948] 15 EACA 63).
5. It is unfortunate that this court has been denied the opportunity to determine how the life of Jeremiah Marisello was taken away but since justice denied is justice denied, I find that the interest of justice demand that Accused be acquitted.
6. Consequently, under the Provisions of section 306 (1) of the Criminal Procedure Code, Accused is hereby found not guilty and it is ordered that he be set at liberty unless otherwise lawfully held.
DATED THIS 20TH DAY OF DECEMBER 2023WAMAE. T. W. CHEREREJUDGE