[2023] KEHC 20753 (KLR)
The court found that none of the prosecution witnesses witnessed the killing or placed the accused at the scene of the crime. There was no direct or circumstantial evidence linking the accused to the death of the deceased. The post-mortem report established the cause of death as subdural haematoma, but no evidence...
Source-derived case information.
- Citation
- [2023] KEHC 20753 (KLR)
- Parties
- Applicant: Republic; Defendant: David Sumba Ambutsi
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 36 of 2016
- Procedural Posture
- Criminal Case / Ruling on No Case to Answer
- Outcome
- acquittal
- Judges
- WM Musyoka
- Legal Topics
- Murder, Prima Facie Case, Malice Aforethought, Acquittal, Burden of Proof
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
David Sumba Ambutsi
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 putting him on his defence.
- 2 Whether the accused was linked to the death of the deceased by direct or circumstantial evidence.
- 3 Whether malice aforethought was established against the accused.
Ratio Decidendi
The court found that none of the prosecution witnesses witnessed the killing or placed the accused at the scene of the crime. There was no direct or circumstantial evidence linking the accused to the death of the deceased. The post-mortem report established the cause of death as subdural haematoma, but no evidence connected the accused to the infliction of the fatal injuries. As a result, the prosecution failed to establish a prima facie case against the accused. Consequently, the court acquitted the accused under section 306(1) of the Criminal Procedure Code, as there was no evidence upon which a reasonable tribunal could convict. The issue of malice aforethought did not arise due to the...
Court Disposition
acquittal
Orders
- The accused is acquitted of the murder charge under section 306(1) of the Criminal Procedure Code.
- The accused shall be set free unless otherwise lawfully held.
Full Case Text
Judgment text and source record
21 paragraphs
Republic v Ambutsi (Criminal Case 36 of 2016) [2023] KEHC 20753 (KLR) (21 July 2023) (Ruling)
Neutral citation: [2023] KEHC 20753 (KLR)
Republic of Kenya
In the High Court at Kakamega
Criminal Case 36 of 2016
WM Musyoka, J
July 21, 2023
Between
Republic
Prosecution
and
David Sumba Ambutsi
Accused
Ruling
1. 4 witnesses testified in this matter. None of them witnessed the killing of the deceased. PW1 received a telephone call, and was informed that the deceased had been killed. PW2 was left by the deceased at their grandmother’s house, and after some time a Victor came into the house, and informed them that the deceased had fallen down, and was bleeding. PW3 told of how he heard screams that a Jombi was killing the deceased, and he rushed to the scene, and found the body lying outside the house of his grandmother. PW4 was the pathologist.
2. None of these witnesses were with the deceased when he sustained his fatal injuries, and did not witness what happened to him. None of them placed the accused person at the scene, nor linked him to the death. The Jombi referred to by PW3 was not the accused person herein. Similarly the Victor that PW2 talked about was not the accused herein.
3. The principal elements of murder are proof of the death, the cause of it, the role of the accused person in the causation, and whether, if the accused caused the death, he did it with malice aforethought.
4. The deceased in fact died, the body was seen by the witnesses, PW1, PW2 and PW3. PW4 produced a post-mortem report, on the autopsy done on the body by another pathologist. On the cause of death, the post-mortem report states that the deceased died of subdural haematoma. None of the witnesses directly linked the accused to the death, and the issue as to malice aforethought does not arise. There is also no circumstantial evidence linking him to the death.
5. It is my finding and holding that no prima facie case has been made out against the accused person herein, to warrant his being put on his defence. I accordingly find him not guilty, and acquit him, under section 306(1) of theCriminal Procedure Code, Cap 75, Laws of Kenya, of the murder of Abudala Okutoyi Sumba Omukangu, contrary to section 203, as read with section 204, of the Penal Code, Cap 63, Laws of Kenya.
6. The accused shall be set free, if he is still in remand custody, unless he is otherwise lawfully held.
RULING DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA THIS ……....21ST.........… DAY OF ………....JULY.......……. 2023WM MUSYOKAJUDGEMr. Erick Zalo, Court Assistant.AppearancesMs. Kagai, instructed by the Director of Public Prosecutions, for the Republic.Ms. Khateshi, Advocate for the accused person.CRIMINAL CASE NO. 36 OF 2016 – RULING 2