[2012] KEHC 215 (KLR)
The court found that the prosecution failed to produce any medical evidence or postmortem report to establish the cause of death of the deceased. Without such evidence, a key element of the offence of murder—proof of death and its cause—was not established. The testimonies of witnesses who merely identified the body...
Source-derived case information.
- Citation
- [2012] KEHC 215 (KLR)
- Parties
- Applicant: Republic; Defendant: Daniel Boaz Kibaron
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 43 of 2010
- Procedural Posture
- Criminal Case / Ruling at Close of Prosecution Case
- Outcome
- acquittal
- Legal Topics
- Murder, Prima Facie Case, Acquittal, Burden of Proof
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Daniel Boaz Kibaron
Defendant
Procedural Posture
Criminal Case / Ruling at Close of Prosecution Case
Legal Issues
- 1 Whether the prosecution established a prima facie case to require the accused to be put on his defence.
- 2 Whether the absence of a postmortem report precludes proof of the cause of death in a murder charge.
Ratio Decidendi
The court found that the prosecution failed to produce any medical evidence or postmortem report to establish the cause of death of the deceased. Without such evidence, a key element of the offence of murder—proof of death and its cause—was not established. The testimonies of witnesses who merely identified the body for postmortem purposes were insufficient. Citing precedent, the court held that in the absence of a postmortem report, it is not possible to state the immediate cause of death. Consequently, the prosecution failed to make out a prima facie case against the accused, and the accused was entitled to an acquittal under Section 306 of the Criminal Procedure Code.
Court Disposition
acquittal
Orders
- The accused is found not guilty and acquitted forthwith under Section 306 of the Criminal Procedure Code.
Full Case Text
Judgment text and source record
35 paragraphs
REPUBLIC OF KENYA
High Court at Eldoret
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REPUBLIC..........................................................................................PROSECUTOR
VERSUS
DANIEL BOAZ KIBARON..........................................................................ACCUSED
RULING:
The Accused was charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code.
The particulars of the offence are that on the 6th day of January, 2010 at Orion Bar in Hawaii area in Uasin Gishu District in the Rift Valley Province the Accused murdered PATRICK KIPKORIR LELIT.
The prosecution called a total of six (6) witnesses and was compelled to close its case as it was unable to secure the attendance of the remaining ten (10) witnesses.
At the close of the prosecutions case Prosecuting Counsel for the State made submissions that it was relying on the evidence on record to support its case.
Counsel for the Accused made submissions that the prosecution had not made out a prima facie case to warrant putting the Accused on his defence. Counsel therefore urged the court to acquit the Accused.
I have perused the court record and find evidence of two (2) prosecution witnesses namely PW2 and PW3 who testified that they attended the postmortem and identified the body of the deceased for postmortem purposes.
Upon further perusal of the record, I find no evidence of any Doctor nor any evidence of a postmortem report being produced or submitted into court.Reference is made to the case of OMAR RAJAB & ANOTHER -VS- R. C.A NO. 231/2006 where it was held;
“................In the absence of a postmortem Report on the deceased it is not possible to state the immediate cause of death of the deceased...............”
This court finds that there is insufficient evidence to support the cause of death and that the prosecution has failed to make out a prima facie case at the close of its case.
The court therefore finds that a case is not made out against the Accused person sufficiently to require him to make a defence.
CONCLUSION:
The court finds the Accused not guilty and the Accused is hereby acquitted forthwith under the provisions of Section 306 of the Criminal Procedure Code.
It is so ordered
DATED and DELIVERED at Eldoret this 17th day of December 2012
A.MSHILA
JUDGE
Coram: Before Hon. A Mshila J
CC: Winnie
Counsel for the State: Ruto holding brief for Kabaka for State
Counsel for the Accused: Ngige
Language: Kiswahili
Accused: Present.
A.MSHILA
JUDGE