[2022] KEHC 15399 (KLR)

Republic v Agiro & 3 others (Criminal Case 13 of 2020) [2022] KEHC 15399 (KLR) (15 November 2022) (Ruling)

Neutral citation: [2022] KEHC 15399 (KLR)

Republic of Kenya

In the High Court at Homa Bay

Criminal Case 13 of 2020

KW Kiarie, J

November 15, 2022

Between

Republic

Prosecution

and

Evans Otieno Agiro Alias Dogo

1st Accused

Victor Okeyo Magadi

2nd Accused

Philip Ooko Ogola

3rd Accused

Fredrick Otieno Songora Alias Fredrick Marieba

4th Accused

Ruling

1. Evans Otieno Agiro alias, Victor Okeyo Magadi, Philip Ooko Ogola and Fredrick Otieno Songora alias Fredrick Marieba are charged with two counts of the offence of murder contrary to section 203 as read with section 204 of the Penal Code.

2. The particulars of the offence are that on the 28th day of February, 2020, at Nyandhiwa Market, in Suba south Sub County of Homa Bay County, murdered Victor Ochieng Osano. At the same place and time they are accused of the murder of Innocent Karondo Muhindo.

3. The two deceased herein died in the hands of unruly boda-boda riders who were collecting funds by menaces for the burial of their own. The accused were alleged to be part of the gang that brutally killed the deceased persons.

4. When the prosecution closed their case, it was submitted that no prima facie case had been established.

5. In the Black’s Law Dictionary, 10th Edition prima facie case is defined as follows:Prima facie case. (1805) I. The establishment of a legally required rebuttable presumption. 2. A party's production of enough evidence to allow the fact-trier to infer the fact at issue and rule in the party's favor.

6. The Court of appeal in the case of Ramanlal Trambaklal Bhatt v. R [1957] E.A 332 at 334 and 335, defined prima facie case as follows:It may not be easy to define what is meant by a “prima facie case”, but at least it must mean one on which a reasonable tribunal, properly directing its mind to the law and the evidence could convict if no explanation is offered by the defence.

7. I will therefore weigh the evidence on record to establish whether the prosecution established a prima facie case against any or all the accused.

8. Two eye witnesses were called by the prosecution. One of them was S.O.A (PW1). His evidence was at about 12. 30 pm on February 28, 2020, he was at Nyandiwa Trading Centre. Dogo (accused 1) called Evan Magadi (accused 2) and others. He informed them that they were to pursue some two people. These two and other boda-boda riders gave chase to two while using other motor bikes. He also followed them on foot and he walked slowly. They (boda-boda riders) caught up with the deceased persons after about one kilometer.

9. The boda-boda riders beat the two using sticks and stones. Dogo used a stick while Magadi used stones.

10. Magadi (accused 2) tied one leg of one of the deceased with a rope and then tied it to a motorcycle and dragged him back to the Trading Centre. At the Trading Centre, Freddie (accused 4) took a knife and cut the deceased’s back, hand and leg. When members of public intervened, he ran to the police where he reported the matter.

11. When this witness testified that he followed the group of boda-boda riders on foot while they were riding motor bikes, this evidence raised a red flag on his credibility. He talked of walking slowly and yet testified of what transpired a kilometer away. This is incredible. He equally testified to have witnessed what happened at the Trading Centre where one of the deceased was dragged back to. Though this time he said he ran back, this is yet another kilometer.

12. He contradicted his own evidence in material aspects. While testifying on cross examination, he said he was present when the rope tied to one of the deceased’s leg was being removed. His statement to the police stated that he was the one who cut the rope. Though he testified to have gone to the police to report, his statement to the police indicate that he remained at the chief’s office other than going to the police station.

13. The other witness whose evidence was that of an eye witness was O.I.M (PW2). His evidence was that he found one of the victims being dragged by Victor Magadi (accused 2) using a motorcycle. He then saw Freddie Marieba (accused 4) carrying the victim of dragging on his back and placed him in front of a storied building.

14. Whereas he testified of this deceased being dragged by use of a motorcycle and by whom unlike S.O.A (PW1), he did not testify to have witnessed anyone remove a rope from his leg. Unlike PW1, he testified that he did not see Freddie Marieba (accused 4) beat the deceased. PW1 had said that accused 4 had used a stone to hit one of the Congolese on the testicles. He also used a knife to cut one of the Congolese on the back, hand and leg.

15. The medical reports in respect of the two deceased persons did not support the contention of O.I.M (PW2) that one of them had cut wounds as testified to.

16. These two material witnesses contradicted each other in addition to PW1 contradicting himself. The Court of Appeal in the case of Ndungu Kimanyi vs. Republic [1979] KLR 283 (Madan, Miller and Potter JJA) held:The witness in a criminal case upon whose evidence it is proposed to rely should not create an impression in the mind of the court that he is not a straightforward person, or raise a suspicion about his trustworthiness, or do (or say) something which indicates that he is a person of doubtful integrity, and therefore an unreliable witness which makes it unsafe to accept his evidence.It is unsafe to rely on the evidence of these witnesses. They are unreliable and have dented their credibility in a manner to suggest either they were not present or have exaggerated what each may have witnessed.1. Article 50 (2) (i) of the Constitution of Kenya provides:(2)Every accused person has the right to a fair trial, which includes the right—(i)i) to remain silent, and not to testify during the proceedings;In the instant case, if the accused persons opt to exercise their constitutional right hereinabove stated, I cannot convict anyone of them based on the evidence on record. This therefore means that the prosecution has not established a prima facie case against anyone them. I accordingly acquit each of them of the offence of murder under section 306 (1) of the Criminal Procedure Code. Each is set at liberty unless if otherwise lawfully held.

DELIVERED AND SIGNED AT HOMA BAY THIS 15THDAY OF NOVEMBER, 2022KIARIE WAWERU KIARIEJUDGE