Republic v Caleb Owino Obongo [2017] KEHC 2929 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISUMU

HCCRC NO. 40 OF 2014

REPUBLIC ………………………………………………………………………… PROSECUTOR

VERSUS

CALEB OWINO OBONGO …………………………………….............................. ACCUSED

RULING

The accused is charged with murder contrary to sec 203 as read with sec 204 of the Penal Code. It is alleged that on 28th April 2014 at Bar Andingo Village in Kisumu West District in Kisumu County, jointly with others not before the court he murdered Antony Obongo Ogire, Deceased.

He pleaded not guilty to the charge.

At the trial the prosecution called eight prosecution witnesses. After the close of the case for the prosecution Mr Omondi, Counsel for the accused submitted that the prosecution had not established a prima facie case against the accused to warrant him to be put on his defence. The issue for determination therefore is whether the accused has a case to answer.

A prima facie case is not established if in the opinion of the court no reasonable tribunal properly directing itself would convict on the evidence on record were the accused person to be put on his defence and he remains silent. Applying this test to this case I have come to the conclusion that the accused has no case to answer.

For this charge to succeed the prosecution must establish first of all that the accused killed the deceased (caused his death through an unlawful act) and secondly that he did so of malice aforethought.

The Deceased in this case is the father of the accused. This court heard that on the fateful day at about 5 O’clock in the morning the deceased and his wife Florence Akinyi Obongo (PW3) left their home to go and plough their shamba. They had with them the cattle they were going to use, a little money and some lunch. They had not gone more than 800 metres from the homestead when they were attacked. The attackers cut them with machetes before fleeing with the animals. According to Florence she did not identify the attackers as they came from behind and it was dark. She sustained serious injuries and could not help her husband who she left lying at the scene and ran home to get help. After that she went to hospital. Asked if she saw the faces of the attackers she was categorical that she did not as their faces were masked. She was also categorical that she did not see the accused at the scene. The other witness who could have shed light on the identity of the attackers was Afline Anyango Oduora(PW4). This witness testified, and this was confirmed by her father Francis Oduara (PW6), that at around the time of the occurrence she passed near the scene as she went to a neighbour’s place to collect some money for her mother. She stated that she saw some four men bending but she did not see what they were doing. They warned her not to draw near and when they saw she was not leaving one

of them started running towards her and so she fled. She stated that of the four men she identified one and he was not the accused. It was not until she returned to the scene with her father that she saw a man had been killed. None of the other witnesses claim to have been at the scene. There is therefore no direct to connect the accused to this crime. The only other evidence adduced against him is circumstantial. This is to be found in the testimonies of Dorothy Akinyi Ouma(PW1), a daughter of the deceased and Francis Oduara(PW6), a village mate. These two witnesses allege that a few days before his death the deceased had confided in them that he had problems with his son the accused as he was not happy with the manner he proposed to apportion land to his (deceased) children and more so his daughters and that the accused had threatened to kill him. Dorothy even claimed to have heard the accused say “Huyu mzee siku moja nitamuua” meaning “ I will kill this old man some day”. The two witnesses also claimed that the deceased had told them that he had reported the matter to the police. What surprised this court however is that these two witnesses did not tell the police this. How could they have left out such crucial evidence? My finding is that the only reasonable explanation is that it was not true. That it may not be true is reflected in the manner Francis (PW6) exagerated his

evidence. Francis told this court that his daughter Afline told him she had seen five people at the scene and one was wiping blood from a person who was lying on the ground. He even gave the name of the person his daughter identified as Opewe. This is in sharp contradiction with Afline’s testimony because she said the men were four and she did not see what they were doing. Although she alleged to have recognized one of them she did not mention his name. These two witnesses were categorical that the deceased had reported the threats by the accused person to the police. However Sergeant Kadawala(PW8) was completely clueless about such a report and did not allude to it at all. In fact he told this court that on his part he found no reason to charge the accused; that he had arrested him only because some people wanted to lynch him. He also stated that he released him only to be told by the DCIO (District Criminal Investigations Officer) Kisumu, that there was evidence to connect him to the murder. PW8 did not purport to know what that evidence was and as the DCIO Kisumu was not called as a witness that is hearsay. There was also no evidence to link the accused to the killers. This created a gap in the prosecution’s case more so given that one of the prosecution witnesses (PW4) claim to have called the accused during the incident and he told her he was far away. The prosecution ought to have carried out investigations to establish this fact. They did not and the resultant doubt must as a matter of law be resolved in the accused's favour.

It is my finding that as there is neither direct nor circumstantial evidence to connect the accused to this crime, heinous as it is, it would be futile to put him on his defence. It would be tantamount to asking him to prove his innocence which is not permissible. In the premises I find him not guilty and acquit him under section 306(1) of the Criminal Procedure Code and order that he shall be set at liberty forthwith unless otherwise lawfully held.

Signed, dated and delivered at Kisumu this 12th day of October 2017

E. N. MAINA

JUDGE

In the presence of

Miss Kimani for the state

Mr. Omondi T. for the Accused Person

Accused Person

Court Assistant – Serah Sidera