[2010] KEHC 2122 (KLR)
The court found that the prosecution had established a prima facie case against the accused. The evidence showed that the accused was last seen with the deceased in the same room after the two ladies had left and before the deceased was found dead by strangulation. The identification by the watchman (PW1) was...
Source-derived case information.
- Citation
- [2010] KEHC 2122 (KLR)
- Parties
- Applicant: Republic; Defendant: Alex Ingala Lukakha
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 30 of 2005
- Procedural Posture
- Criminal Case / Ruling on Case to Answer at Close of Prosecution Case
- Outcome
- Accused found to have a case to answer and ordered to be put on his defence.
- Legal Topics
- Murder, Identification Evidence, Expert Evidence, Prima Facie Case
- 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
Alex Ingala Lukakha
Defendant
Procedural Posture
Criminal Case / Ruling on Case to Answer at Close of Prosecution Case
Legal Issues
- 1 Whether the prosecution has established a prima facie case to require the accused to be put on his defence.
- 2 Whether the identification of the accused by prosecution witnesses was reliable under the prevailing circumstances.
- 3 Whether the absence of certain witnesses and alleged inconsistencies in expert evidence undermine the prosecution case.
Ratio Decidendi
The court found that the prosecution had established a prima facie case against the accused. The evidence showed that the accused was last seen with the deceased in the same room after the two ladies had left and before the deceased was found dead by strangulation. The identification by the watchman (PW1) was considered reliable on a prima facie basis, as he interacted with the accused and deceased on more than one occasion. The court found no material inconsistencies between the expert opinions of the doctor and the government analyst; rather, the doctor's explanation that the high levels of drugs and alcohol in the deceased's body made it easier for strangulation to occur was accepted....
Court Disposition
Accused found to have a case to answer and ordered to be put on his defence.
Orders
- The accused is found to have a case to answer.
- The accused is hereby put on his defence.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (
MILIMANI LAW COURTS
Criminal Case 30 of 2005
REPUBLIC………………………….................……..……………........PROSECUTOR
VERSUS
ALEX INGALA LUKAKHA…….………………….......................................ACCUSED
R U L I N G
The accused, ALEX INGALA LUKAKHA, is charged ith the offence of murder.It is the prosecution case that the accused murdered DAVID ODHIAMBO ONGA, at Kitengela, on the night of 5th November, 2004.
By the time the prosecution closed its case, six witnesses had testified.
The accused then submitted that the evidence adduced was insufficient to warrant his being put on his defence.
He said that PW 1, TAJEU OLE LENGETE, could have been mistaken when he allegedly identified the accused. That contention is premised upon the fact that it was about 2. 00a.m when PW 1 allegedly talked to the accused.Given the time of night, the accused asserted that the circumstances prevailing were not conducive for positive identification.
Secondly, the accused submitted that the prosecution failed to produce two essential witnesses.Those two are the ladies who were in the company of the deceased and the accused, on the material night.
Thirdly, the accused submitted that his friend, who accompanied him on the morning when he had gone to check on the deceased, should also have testified.His reason for so saying was that the said friend was held briefly by the police.However, the said friend was thereafter released, and yet he did not testify in this case.
The accused also submitted that the opinions of the experts who testified, were at variance. The two experts were the doctor who conducted the post mortem examination on the body of the deceased, and the Government Analyst who conducted tests on the specimens drawn from the body of the deceased.
It is the view of the accused that the findings of the doctor were incomprehensible, because he did not explain how a person could be strangled, yet there were no external physical marks on his neck.
In any event, the accused believes that the doctor’s views were influenced by the information which the police gave to him.The said information was to the effect that the deceased had spent a night with several other persons, in one room.As far as the accused was concerned, the said information was detrimental to him.
The accused also pointed out that the Government Analyst established that both the malarial drugs and the alcohol which was in the body of the deceased were in such high levels of concentration that they were fatal.
I will take into account the above-stated submissions, when determining whether or not the accused should be put to his defence.
First, there is no doubt at all that on the material night, the deceased was in the company of one man and two ladies.However, it is also on record that the said ladies left the two men after being with them for about 20 minutes.
By the time the said ladies left, the deceased was alive. Indeed, it is he who told the watchmen, PW 1, that the men did not have any reason for barring the ladies from leaving the lodging.
Secondly, on a prima facie basis, I do not find any inconsistencies between the professional opinions of the doctor and the analyst.I say so because the doctor did explain that the level of the drug and alcohol in the body of the deceased was significant, because it explained why it was easy to strangulate the deceased, given the fact that he had already been sub-dued.
And, according to the watchmen (PW 1) he saw and talked to both the accused and the deceased, on more than one occasion.First, he talked to them when they sought a room.Secondly, he talked to the accused when the lady who was with the said accused made noise, complaining that the accused had refused to use a condom.Not only did PW 1 ask the two to resolve the issue, but he also got the manager (PW 3) to talk to the accused.
It would therefore appear, on a prima facie basis, that the accused was identified positively.
Given the fact that the accused was with the deceased in one room, and that the two ladies who had been with them had left when the deceased was still alive; but the deceased passed away thereafter, through strangulation, I find that the accused has a case to answer.The prosecution has definitely established a prima facie case to warrant the accused being put to his defence.I so hold.
Dated, Signed and Delivered at Nairobi, this 12th day of May, 2010.
........................................ FRED A. OCHIENG
JUDGE