[2019] KEHC 10459 (KLR)
The court found that the prosecution failed to discharge its duty of establishing a prima facie case against the accused. The evidence presented did not sufficiently prove the material ingredients of the offence of murder, as there was no testimony from the investigating officer regarding the circumstances of the...
Source-derived case information.
- Citation
- [2019] KEHC 10459 (KLR)
- Parties
- Applicant: Republic; Defendant: Benard Acholla Ugesa
- Court
- High Court
- Court Station
- High Court at Homa Bay
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 4 of 2014
- Procedural Posture
- Criminal Case / Ruling on No Case to Answer
- Outcome
- acquittal
- Legal Topics
- Murder, Prima Facie Case, Malice Aforethought, Burden of Proof, Acquittal, Criminal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Benard Acholla Ugesa
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 placing him on his defence.
- 2 Whether the evidence adduced proved the material ingredients of the offence of murder against the accused.
Ratio Decidendi
The court found that the prosecution failed to discharge its duty of establishing a prima facie case against the accused. The evidence presented did not sufficiently prove the material ingredients of the offence of murder, as there was no testimony from the investigating officer regarding the circumstances of the accused's arrest or the reasons for charging him. Furthermore, the absence of medical evidence from the doctor who performed the postmortem meant that the cause of death and its connection to a criminal act by the accused were not established. As a result, the court held that placing the accused on his defence would be improper, as it would require him to fill evidentiary gaps...
Court Disposition
acquittal
Orders
- The accused, Benard Acholla Ugesa, is acquitted of the charge of murder and set at liberty unless otherwise lawfully held.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT HOMA BAY
CRIMINAL CASE NO.4 OF 2014
REPUBLIC …………………………..…….………. COMPLAINANT
VERSUS
BENARD ACHOLLA UGESA ………………….………. ACCUSED
RULING
[1]The charge facing the accused, BENARD ACHOLLA UGESA is that of murder, contrary to Section 203 as read with Section 204 of the Penal Code.
The particulars are that on the 16th January 2014 at Miria village, Seka sub location in Suba District within Homa Bay County, jointly with others not before court murdered Faith Achieng. The prosecution closed its case having called a total of five witnesses including POLYCAP MASARA KIBOYE(PW1),ANDREW OGUTU KIBOYE(PW2),ANDREW OMBISA(PW3),JOHN OLEWE MASARA(PW4) and MARY ACHIENG OGUYA(PW5).
[2]These witnesses were expected to adduce evidence, strong and credible enough, to establish a prima facie case warranting that the accused be placed on his defence. Such a case is one in which a reasonable court properly directing its mind to the law and evidence before it would convict if no explanation is offered by the defence (See, R.T. BHATT –vs- REPUBLIC [1957] EA 332).
A mere scintilla of evidence nor any amount of worthless discredited evidence can never be sufficient enough to establish a prima facie case and hence, the material ingredients of any one charge facing an accused person.
[3]Murder, occurs where a person who of malice aforethought causes death of another person by an unlawful act or omission (see, Section 203 of the Penal Code).
This is the charge facing the accused in that, he allegedly caused the death of the deceased Faith Achieng.
At most, the evidence led by the witnesses aforementioned indicated that the deceased had been “inherited” by the accused in keeping with their cultural traditions and on the material date the accused implied that she was unfaithful and had infected him with a disease which was incurable. He allegedly dragged her from their house while she was naked prior to accusing her. He thereafter proceeded to assault and injure her without bothering to take her to hospital even after dragging her along a stony ground surface. She was taken to hospital by villagers but passed away while undergoing treatment. She allegedly succumbed to the injuries occasioned to her by the accused.
[4]Apparently, the accused was arrested and charged for the death of the deceased on the basis of the medical findings resulting from an autopsy (postmortem) on the body of the deceased witnessed by JOHN OLEWE (PW4) and performed by a Dr. Ojwang. However, there was no evidence of the investigating officer to shed light on how the accused was arrested and for what reasons. There was also no evidence by the doctor to establish the cause of death and more particularly if it was as a result of a criminal act of assault committed against the deceased.
In the circumstances, the evidence so far adduced against the accused remains insufficient to establish the material ingredients of the charge and the accused’s culpability in that regard.
Therefore, placing the accused on his defence on the basis of such evidence would be tantamount to asking him to fill the gaps left wide open by the prosecution.
[5]It was unfortunate that a domestic brawl between the accused and the deceased led to the death of the deceased, but the duty to set out a “prima facie” case to warrant that the accused be placed on his defence was never discharged by the prosecution.
It is therefore the ultimate finding of this court that the accused has no case to answer and is hereby acquitted.
J.R. KARANJAH
JUDGE
23. 01. 2019
[Read and signed this 23rd day of January, 2019]
[In the presence of M/s Ongeti for Republic and M/s Adoyo
for accused]