[2022] KEHC 16934 (KLR)
The court found that the prosecution failed to establish a prima facie case against the accused. None of the witnesses saw the accused assault the deceased, and there was no circumstantial evidence or dying declaration. The investigating officer himself testified that there was no evidence linking the accused to the...
Source-derived case information.
- Citation
- [2022] KEHC 16934 (KLR)
- Parties
- Applicant: Republic; Defendant: George Makokha Ashika
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Criminal Case E137 of 2021
- Procedural Posture
- Criminal Case / Ruling on No Case to Answer
- Outcome
- acquittal
- Judges
- WM Musyoka
- Legal Topics
- Murder, Prima Facie Case, Burden of Proof, Acquittal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
George Makokha Ashika
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 suspicion alone is sufficient to sustain a conviction for murder.
Ratio Decidendi
The court found that the prosecution failed to establish a prima facie case against the accused. None of the witnesses saw the accused assault the deceased, and there was no circumstantial evidence or dying declaration. The investigating officer himself testified that there was no evidence linking the accused to the murder and described the case as weak. The only basis for suspicion was previous quarrels between the accused and the deceased, which is insufficient for conviction. The court held that suspicion, however strong, cannot be a basis for a conviction. Consequently, the accused was acquitted under section 306(1) of the Criminal Procedure Code.
Court Disposition
acquittal
Orders
- The accused is acquitted of the charge of murder under section 306(1) of the Criminal Procedure Code.
- The accused shall be set free from remand custody unless otherwise lawfully held.
Full Case Text
Judgment text and source record
18 paragraphs
Republic v Ashika (Criminal Case E137 of 2021) [2022] KEHC 16934 (KLR) (23 December 2022) (Ruling)
Neutral citation: [2022] KEHC 16934 (KLR)
Republic of Kenya
In the High Court at Kakamega
Criminal Case E137 of 2021
WM Musyoka, J
December 23, 2022
Between
Republic
Prosecution
and
George Makokha Ashika
Accused
Ruling
1. I have gone through the record herein, and I also had the benefit of hearing and seeing all the witnesses testify herein. The case herein is founded on mere suspicion, none of the witnesses saw the accused assault the deceased herein, Tonadi Albert Makokha, and there is no circumstantial evidence, nor a dying declaration. It is trite that suspicion, however strong, cannot be a basis for a conviction.
2. The investigation officer himself, PW6, Police Constable No 111653 Jackson Kyalo, does not have faith in the case. He testified, on October 4, 2022, as follows:“Am the one who recorded the investigation diary. There was no evidence linking the accused to the murder. I had stated that the facts were weak, in my report. None of the witnesses saw the accused cut or kill the deceased. The accused was suspected because of the previous quarrels he had with the deceased. None of the witnesses saw the accused and the deceased together before his death … Investigations are still going on at Lunza Police Station.”
3. Overall, a prima facie case has not been established against the accused person, to warrant his being put on his defence. I shall accordingly acquit him of the charge, under section 306(1) of the Criminal Procedure Code, cap 75, Laws of Kenya, of the murder, contrary to section 203, as read with section 204 of the Penal Code, cap 63, Laws of Kenya, of Tonadi Albert Makokha. He shall be set free from remand custody, unless he is otherwise lawfully held.
RULING DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA THIS 23RD DAY OF DECEMBER 2022WM MUSYOKAJUDGEMr Erick Zalo, court assistant.Ms Kagai, instructed by the Director of Public Prosecutions, for the republic.Mr K’Ombwayo, advocate for the accused person.