[2022] KEHC 13694 (KLR)

Republic v Arasa & 2 others (Criminal Case E009 of 2020) [2022] KEHC 13694 (KLR) (12 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13694 (KLR)

Republic of Kenya

In the High Court at Homa Bay

Criminal Case E009 of 2020

KW Kiarie, J

October 12, 2022

Between

Republic

Prosecutor

and

Esther Nyangara Arasa

1st Accused

Thoya Katana

2nd Accused

Paul Kamau

3rd Accused

Ruling

1. Esther Nyangara Arasa, Thoya Katana and Paul Kamau are charged with an 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 October 21st, 2017, at Pala village, in Ndhiwa Sub County within Homa Bay County, murdered George Kennedy Khazi.

3. The deceased herein was arrested for an alleged offence of beating Paul Onyango son of Jane Akinyi Okech. After the issue of Paul Onyango was resolved amicably, the deceased was later found dead and the three accused were implicated in his death.

4. According to the evidence of George Otieno Chianji (PW2) the first accused hit the deceased on the head with the sharp pointed part of the gun at the time of his arrest. He said each of the three officers had guns.

5. This evidence was however contradicted by the evidence of Jane Akinyi Okech (PW3) who was present at the time of the arrest. Her evidence was that the deceased did not resist arrest and that no officer assaulted him. She further testified the first accused was armed with handcuffs only.

6. The evidence of Milton Oyugi Awino (PW10) was that he was the assistant chief of Mboya sub location. He said he was present at the time of the arrest of the deceased who did not resist. He said that he was not assaulted at the time of his arrest.

7. Corporal Zedekiah Ongubo (PW5) was the armory in-charge at Pala Police Post. He issued arms to the second and the third accused only when they were going to effect the arrest of the deceased. When the deceased was taken to the station, he was normal in all aspects.

8. At about 12 noon, Simeon Omondi Obadhi (PW6) met with the deceased after he had learnt that he had been arrested. The deceased was walking from the Chief’s Camp. He told him that he had resolved the issue of Jane Akinyi’s child and that he was going home. The only conspicuous thing he noted was that the deceased appeared dirty and was covering his head with a hood. We however know that he was arrested from his garden where he was working.

9. George Onyango Awuoche (PW9) was the area assistant chief at the time of the incident. He testified that when he found the deceased at the police, the latter told him that he had resolved an issue with a woman and was waiting to be released. He returned to his office and shortly the deceased went to his office and wanted him to assist him to lease his land. The deceased left for his home. His evidence was that he did not see him with any injuries nor did he complain to him of anything.

10. The investigating officer, Monicah Kerubo Obegi (PW11) arrived at her conclusion based on the evidence of George Otieno Chianji (PW2).

11. The evidence of PW2 was contradicted by the evidence of other witnesses who were present at the time of arrest and witnesses who interacted with the deceased at the police station after he was released upon resolving the issue that had caused his arrest. 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.In the instant case, I find George Otieno Chianji (PW2) to be unreliable witness and unworthy of belief.

12. What is a prima facie case? 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.

13. 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.

14. 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)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 any one of them based on the evidence on record. This therefore means that the prosecution has not established a prima facie case against any of the accused. I accordingly acquit each of them of 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 12TH DAY OF OCTOBER, 2022KIARIE WAWERU KIARIEJUDGE