[2012] KEHC 4800 (KLR)
The court found that the prosecution failed to establish a prima facie case against the accused. The only evidence implicating the accused was the statement attributed to him by PW2, which was not corroborated by any other witness or direct evidence. No witness testified to witnessing the alleged beating, and there...
Source-derived case information.
- Citation
- [2012] KEHC 4800 (KLR)
- Parties
- Applicant: Republic; Defendant: Abu Rajab Eshiwani
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 14 of 2011
- Procedural Posture
- Criminal Case / Ruling on No Case to Answer
- Outcome
- acquittal under section 210 of the Criminal Procedure Code
- Legal Topics
- Murder, Prima Facie Case, Acquittal, Burden of Proof
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Republic
Applicant
Abu Rajab Eshiwani
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 to warrant placing him on his defence.
- 2 Whether the evidence adduced linked the accused to the murder of the deceased.
Ratio Decidendi
The court found that the prosecution failed to establish a prima facie case against the accused. The only evidence implicating the accused was the statement attributed to him by PW2, which was not corroborated by any other witness or direct evidence. No witness testified to witnessing the alleged beating, and there was no confession or tangible evidence linking the accused to the murder. The court held that suspicion, however strong, is not sufficient to put an accused on his defence or to convict. Consequently, the accused was acquitted under Section 210 of the Criminal Procedure Code for lack of evidence.
Court Disposition
acquittal under section 210 of the Criminal Procedure Code
Orders
- The accused is acquitted under Section 210 of the Criminal Procedure Code.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA AT KAKAMEGA
CRIMINAL CASE NO. 14 OF 2011
REPUBLIC............................................... PROSECUTOR
VERSUS
ABU RAJAB ESHIWANI................................. ACCUSED
R U L I N G
The Accused, ABU RAJAB ESHIWANI, is charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code.
The particulars of the offence are that on the night of 21st and 22nd February, 2011 at Ebokondosi village, Eshirali Sub-location, Mulwanda Location, in Khwisero within Kakamega County, of Western Province, murdered PASCAL SANDE AMESO.
The case for the prosecution is that on 22. 2.11 at about 10. 00 a.m. PW2, HELLEN AYUMA ATINGA who is an in-law to the deceased was at her home near the gate when the accused told her that he had found the deceased stealing his food crops and had arrested and beaten him. This prompted the family members of the deceased to start looking for the deceased. The body of the deceased was found near a swamp. The body had injuries. The body was removed from the scene and investigations commenced.
The Prosecution called a total of six witnesses. PW1, THOMAS ESHITUKU SWAKA is the Assistant Chief of the area where the deceased hailed from. He had no tangible evidence as to who killed the deceased.
PW2, HELLEN AYUMA ATINGA gave evidence that the accused had told her that he had beaten up the deceased who had stolen his food crops from the farm of the accused. There is however no evidence of confession. No witness has testified on the alleged beating.
The evidence of PW3, ZACHARIAH ATINGA AMESO and that of PW4, SILVANUS AMENYA AMESO who are brothers to the deceased dwells on the reports that were received and action taken. The evidence of PW5, SGT. STANLEY WAWIRE the Investigating Officer deals with the formal aspects of the case. There is no evidence of the alleged beating or any tangible evidence on who killed the deceased.
It seems the arrest of the accused was based on what PW2, HELLEN AYUMA ATINGA said the accused told her. That alone is not sufficient evidence to warrant placing the accused on his defence. The evidence adduced by the prosecution witnesses fails to establish a prima facie case. The accused is consequently acquitted under S.210 C.P.C.
Delivered, dated and signed at Kakamega this 8th day of March, 2012
B. THURANIRA JADEN
J U D G E