[2016] KEHC 639 (KLR)
The court found that the prosecution had established a prima facie case against the 1st, 2nd, and 3rd accused, warranting that they be put on their defence. However, for the 4th accused, the only evidence linking him to the offence was implication by co-accused, which was not corroborated by independent evidence....
Source-derived case information.
- Citation
- [2016] KEHC 639 (KLR)
- Parties
- Applicant: Republic; Defendant: Samuel Omondi Gombe alias Agok; Defendant: Vitalis Obula Okendo alias Daktari; Defendant: Hezron Otieno Okendo alias Otis; Defendant: Charles Otieno Omollo
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 51 of 2012
- Procedural Posture
- Criminal Case / Ruling on Case to Answer After Prosecution Evidence
- Outcome
- Partial acquittal; 4th accused acquitted, others to be put on defence.
- Judges
- DAS Majanja
- Legal Topics
- Murder, Case to Answer, Acquittal, Identification Evidence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Samuel Omondi Gombe alias Agok
Defendant
Vitalis Obula Okendo alias Daktari
Defendant
Hezron Otieno Okendo alias Otis
Defendant
Charles Otieno Omollo
Defendant
Procedural Posture
Criminal Case / Ruling on Case to Answer After Prosecution Evidence
Legal Issues
- 1 Whether there is sufficient evidence to put each accused on their defence for the offence of murder.
- 2 Whether the evidence against the 4th accused meets the threshold to require him to answer the charge.
Ratio Decidendi
The court found that the prosecution had established a prima facie case against the 1st, 2nd, and 3rd accused, warranting that they be put on their defence. However, for the 4th accused, the only evidence linking him to the offence was implication by co-accused, which was not corroborated by independent evidence. The principal eye witness did not identify the 4th accused, and the investigating officer admitted the lack of corroborative evidence. In accordance with Section 306 of the Criminal Procedure Code, the court held that the 4th accused had no case to answer and acquitted him. The remaining accused were informed of their rights regarding the defence stage.
Court Disposition
Partial acquittal; 4th accused acquitted, others to be put on defence.
Orders
- The 4th accused, Charles Otieno Omollo, is acquitted under Section 306 of the Criminal Procedure Code.
- The 1st, 2nd, and 3rd accused are put on their defence and informed of their rights.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT AT KISUMU
CRIMINAL CASE NO. 51 OF 2012
BETWEEN
PROSECUTOR......................................................................................... REPUBLIC
AND
SAMUEL OMONDI GOMBEaliasAGOK ....................................... 1ST ACCUSED
VITALIS OBULA OKENDOaliasDAKTARI ..................................... 2ND ACCUSED
HEZRON OTIENO OKENDOaliasOTIS ......................................... 3RD ACCUSED
CHARLES OTIENO OMOLO .......................................................... 4TH ACCUSED
RULING
1. On 20th July 2012, this Court was informed that SAMUEL OMONDI GOMBEaliasAGOK, VITALIS OBOLA OKENDOaliasDAKTARI, HEZRON OTIENO OKENDOaliasOTISand CHARLES OTIENO OMULOhad murdered MESHACK OWINO MUHUR(the deceased) on 19th July 2012 at Karapul Village, Siaya Township, Siaya District jointly with others not before the Court.
2. After considering the testimony of 5 prosecution witnesses, I am satisfied that there is sufficient evidence to put the 1st, 2nd and 3rd accused on their defence. The principal eye witness did not identify the 4th accused nor was there independent corroborative evidence to implicate him. The investigating officer Corporal Patrick Malumana (PW 5) admitted that the 4th accused was implicated by the co-accused. In the absence of corroboration, this is evidence of the weakest kind. Accordingly, the 4th accused, CHARLES OTIENO OMOLLO, has no case to answer and I hereby enter a finding of not guilty under Section 306 of the Criminal Procedure Code (Chapter 75 of the Laws of Kenya) and he is accordingly acquitted.
3. The 1st, 2nd and 3rd accused are now informed of their right to remain silent, to give unsworn statement in which case they shall not be cross-examined or to give sworn testimony in which case they shall be cross-examined by the prosecution. They may also elect to make an address through their advocate. They are also informed of their right to call witnesses.
DATED and DELIVERED at KISUMU this 30th day of November 2016.
D.S. MAJANJA
JUDGE
Mr Adiso instructed by Adiso and Company Advocates for the accused.
Ms Osoro, Prosecution Counsel, instructed by the Office of the Director of Public Prosecutions, for the State.