[2011] KEHC 2780 (KLR)
The court found that the prosecution failed to establish a prima facie case against the accused persons. Only two witnesses testified: one who arrested the accused and another who identified the deceased's body. No evidence was adduced linking the accused to the murder or establishing the elements of the offence....
Source-derived case information.
- Citation
- [2011] KEHC 2780 (KLR)
- Parties
- Applicant: Republic; Defendant: Andrea Iloba; Defendant: Patrick Muhanji; Defendant: Dickson Shitseli (deceased)
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 6 of 2004
- Procedural Posture
- Criminal Case / Ruling on Case to Answer at Close of Prosecution Case
- Outcome
- acquittal
- Legal Topics
- Murder Charge, Prima Facie Case, Acquittal, Burden of Proof
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Andrea Iloba
Defendant
Patrick Muhanji
Defendant
Dickson Shitseli (deceased)
Defendant
Procedural Posture
Criminal Case / Ruling on Case to Answer at Close of Prosecution Case
Legal Issues
- 1 Whether the prosecution established a prima facie case against the accused persons to warrant putting them on their defence.
- 2 Whether the evidence adduced by the prosecution meets the threshold required in law for a murder charge.
Ratio Decidendi
The court found that the prosecution failed to establish a prima facie case against the accused persons. Only two witnesses testified: one who arrested the accused and another who identified the deceased's body. No evidence was adduced linking the accused to the murder or establishing the elements of the offence. Despite multiple adjournments and the listing of eight witnesses in the statement of offence, the prosecution did not present sufficient evidence to meet the legal threshold required for a murder charge. Consequently, the accused persons had no case to answer and were acquitted under Section 306(1) of the Criminal Procedure Code.
Court Disposition
acquittal
Orders
- The accused persons are acquitted of the charge of murder.
- They shall be released unless otherwise lawfully held.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KAKAMEGA
CRIMINAL CASE NO. 6 OF 2004
REPUBLIC ................................................................. PROSECUTOR
V E R S U S
1. ANDREA ILOBA.........................................................................ACCUSED
2. PATRICK MUHANJI..........................................................................ACCUSED
3. DICKSON SHITSELI (deceased)
R U L I N G
1. The accused persons herein were first arraigned in this court on 16. 2.2004 where they faced the charge of murder contrary to section 203andsection 204 of the Penal Code. It was alleged that on 14. 1.2004 at Busalwa village in Kakamega District, they murdered Timona Mudi. They denied the charge when they took plea on 26. 4.2004 and the case was fixed for hearing on 8. 11. 2004and9. 11. 2004. On both dates, no witness was availed and thereafter, it was fixed for hearing and/or mention on 25. 11. 2004, 18. 1.2005, 31. 1.2005, 2. 11. 2005, 8. 11. 2005, 3. 7.2006, 4. 7.2006, 5. 2.2007, 6. 2.2007and on27. 6.2007, G.B.M. Kariuki, J. took the evidence of two witnesses. The learned judge then adjourned the hearing to 28. 6.2007 but on that date as well as on 18. 9.2007, 6. 2.2008, 18. 2.2008, 17. 6.2008, 7. 10. 2008, 11. 3.2009,and12. 3.2009, no witness was availed and on the latter date, Ochieng J. granted the Republic the last adjournment and fixed the hearing for 19. 11. 2009. Neither on that date nor on 3. 11. 2009 when Chitembwe J. ordered the matter to start de novo, did the Republic call any witness. The same was the case on 18. 5.2010, 15. 6.2010and14. 7.2010, when I also granted a last adjournment. On 5. 10. 2010 only one witness testified i.e. PW1, P.C. Nelson Kamama who visited the scene on 24. 1.2004 and re-arrested the three accused persons. On 6. 10. 2010, no witness was availed and I reluctantly adjourned it to 29. 11. 2010 when again no witness appeared and I granted another last adjournment. On 1. 2.2011, PW2, Samwel Anduku testified and stated that he was the one who identified the deceased’s body during the post-mortem.
2. The Republic closed its case with only the above evidence on record and it is obvious that the said evidence is not, prima facie, sufficient to warrant the accused persons being put on their respective defences.
3. It is not enough that PW1 arrested the accused persons and PW2 identified the deceased’s body.
4. I note that in the Statement of offence, 8 witnesses were listed and the evidence of PW1 and PW2 needed beefing up for it to reach the threshold required in law. It is strange that afte close to 8 years, the Republic has been unable to call more than the two witnesses above and in the end, I find that the accused persons have no case to answer and they are acquitted accordingly.
5. They shall be released unless they are otherwise lawfully held.
6. Orders accordingly.
Delivered, dated and signed at Kakamega this 13th day of April, 2011.
ISAAC LENAOLA
J U D G E