[2018] KEHC 5516 (KLR)
The court found that the prosecution, having received the Government Analyst report confirming death by poisoning and considering the totality of evidence, determined that there was insufficient evidence to sustain a murder charge against the accused. The court accepted the prosecution's application to withdraw the...
Source-derived case information.
- Citation
- [2018] KEHC 5516 (KLR)
- Parties
- Applicant: Republic; Defendant: Cosmas Mokaya Magori
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 49 of 2015
- Procedural Posture
- Criminal Case / Ruling on Withdrawal (nolle Prosequi)
- Outcome
- acquittal and discharge of accused upon withdrawal of charges by nolle prosequi
- Legal Topics
- Murder, Withdrawal of Charges, Nolle Prosequi, Acquittal, Evidence Assessment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Republic
Applicant
Cosmas Mokaya Magori
Defendant
Procedural Posture
Criminal Case / Ruling on Withdrawal (nolle Prosequi)
Legal Issues
- 1 Whether the prosecution has sufficient evidence to sustain a charge of murder against the accused.
- 2 Whether the prosecution should be granted leave to withdraw the case under nolle prosequi provisions.
Ratio Decidendi
The court found that the prosecution, having received the Government Analyst report confirming death by poisoning and considering the totality of evidence, determined that there was insufficient evidence to sustain a murder charge against the accused. The court accepted the prosecution's application to withdraw the case by nolle prosequi, noting that there was no evidence to implicate the accused. Consequently, the accused was acquitted and discharged from the proceedings, and the sureties were also discharged.
Court Disposition
acquittal and discharge of accused upon withdrawal of charges by nolle prosequi
Orders
- Leave granted to the prosecution to withdraw the case.
- Cosmas Mokaya Magori is acquitted for the murder of Eunice Ayuma Mokaya.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISII
CRIMINAL CASE NO. 49 OF 2015
REPUBLIC.......................................................................................PROSECUTOR
VERSUS
COSMAS MOKAYA MAGORI.............................................................ACCUSED
RULING
The accused, COSMAS MOKAYA MAGORI, was charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code (Chapter 63 of the Laws of Kenya). The particulars of the information were that on 29th August 2015 at Sosera Sub-location in Masaba South Sub-County within Kisii County, he murdered Eunice Ayuma Mokaya.
When this matter came up for hearing today, 10th July 2018 counsel for the prosecution applied to withdraw the matter by entering a nolle prosequi signed by Mr. Imbali Assistant Director of Public Prosecutions under Articles 157(6)(c) and 157(g) of the Constitution.
Counsel for the prosecution explained that the reason the matter had not taken off was that the prosecution was awaiting the Government Analyst report. The report dated 11th September 2017 was eventually received and it showed that the deceased had ingested an acaricide which is poisonous. According to the post mortem form the deceased died from poisoning. Mr. Otieno explained that according to the evidence the deceased was seen ingesting poison although there was evidence of assault. In his view therefore, the totality of the evidence could not sustain a prosecution for murder.
Having considered the reasons for termination, I hereby grant leave to the prosecution to withdraw this case. As there is no evidence to implicate the accused, COSMAS MOKAYA MAGORI is hereby acquitted for the murder of EUNICE AYUMA MOKAYA. He is accordingly discharged from these proceedings. The sureties are also discharged.
Dated and delivered at Kisii this 10th July 2018.
D.S MAJANJA
JUDGE
Mr. Otieno, Prosecution Counsel, instructed by Office of Director of Prosecutions
Mr. Bigogo, Advocate for the Accused