Kenya Judgment

High Court · High Court at Nakuru

Republic v David Kimonda Chesang’ [2017] KEHC 5569 (KLR)

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Professional case brief

Research organized from the available case record

Source document

01

Holding and result

The court held that, despite eyewitness testimony of the accused stabbing the deceased, the prosecution failed to produce medical evidence or a post-mortem report to establish the cause of death beyond reasonable doubt. The absence of such evidence meant that a crucial ingredient of the offence of murder—proof that the deceased died as a result of the alleged stabbing—was not established. The court relied on the authority of Chengo Nickson Kalama v Republic [2015] eKLR, which underscores the necessity of medical evidence to prove death and its cause in homicide cases. Consequently, the court found that no prima facie case had been made out against the accused and acquitted him of the charge of murder.

Court disposition

acquittal

Orders

  • The accused is found not guilty of murder.
  • The accused is acquitted and to be set at liberty forthwith unless otherwise lawfully held.

02

Material facts

Parties

Republic

Applicant

David Kimonda Chesang’

Defendant Counsel: Mr. Kipkemei (represented by Mr. Kemboi)

03

Procedural history

  1. Posture

    Criminal Case / Ruling on Whether a Prima Facie Case Has Been Established at Close of Prosecution Case

04

Questions and positions

Legal issues

Party arguments

Applicant
The prosecution relied on eyewitness testimony that the accused stabbed the deceased, supported by three witnesses who saw the accused with a blood-stained knife over the deceased. The prosecution invited the court to infer that the deceased died as a result of the stabbing, despite not producing a post-mortem report or medical evidence.
Respondent
The defence did not present arguments at this stage, but the absence of medical evidence and a post-mortem report was material to the accused's case, as it undermined proof of the cause of death and the prosecution's ability to establish a prima facie case.

05

Court’s reasoning

  1. 01

    Chengo Nickson Kalama v Republic [2015] eKLR

    In murder trials, the prosecution must prove both the fact and cause of death beyond reasonable doubt, typically through medical evidence such as a post-mortem report.

  2. 02

    Section 203 and 204 of the Penal Code; general principles of criminal law

    A prima facie case is not established unless all essential elements of the offence, including cause of death, are proved.

06

Ratio, limits and disposition

Ratio decidendi

The court held that, despite eyewitness testimony of the accused stabbing the deceased, the prosecution failed to produce medical evidence or a post-mortem report to establish the cause of death beyond reasonable doubt. The absence of such evidence meant that a crucial ingredient of the offence of murder—proof that the deceased died as a result of the alleged stabbing—was not established. The court relied on the authority of Chengo Nickson Kalama v Republic [2015] eKLR, which underscores the necessity of medical evidence to prove death and its cause in homicide cases. Consequently, the court found that no prima facie case had been made out against the accused and acquitted him of the charge of murder.

Obiter and limits

  • Eyewitness testimony alone, without medical evidence, is insufficient to prove the cause of death in a murder trial.
  • The link between an alleged assault and the victim's death must be established beyond reasonable doubt through admissible evidence.

Court disposition

acquittal

  • The accused is found not guilty of murder.
  • The accused is acquitted and to be set at liberty forthwith unless otherwise lawfully held.

Source and reliance status

High Court

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Judgment text

The complete available source text.

Source document

High Court

Judgment

[2017] KEHC 5569 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAKURU

CRIMINAL CASE NO. 47 OF 2011

REPUBLIC........................................................................STATE

VERSUS

DAVID KIMONDA CHESANG’..................................ACCUSED

RULING

The accused DAVID KIMONDA CHESANG’ faces a charge of MURDER CONTRARY TO SECTION 203 as read with SECTION 204 OF THE PENAL CODE. The particulars of the charge were given as follows:-

“On the 3rd day of June, 2011 at Rumuruti Township in Laikipia West District within Rift Valley Province murdered JULIUS MWANGI”

The accused pleaded ‘Not Guilty’ to the charge and his trial commenced before Hon. Lady Justice Hellen Omondi on 9/10/13.

The prosecution called a total of four (4) witnesses in support of their case.

The prosecution case as narrated by PW2 FRANCIS KIPRONO ARAP CHEPKWONYwho is the proprietor of Furaha Bar and Lodgings in Rumuruti is as follows.

On 2/6/2011 he was at his bar working. At about midnight he heard a loud bang and the front door was pushed open. He heard the sound of footsteps running and a man calling out for help. PW2 rushed to check what the problem was. He found the deceased JAMES MWANGI trying to shield himself from the accused. The accused had a knife and PW2 saw the accused take aim and stab the deceased in the chest. The deceased fell to the ground. The accused raised his hand in order to stab the deceased again. PW2 stepped forward and held the accused’s hand.

Due to the commotion occupants in the other rooms came out. These included PW1 JAMES NDIANGUI MUIGA and PW3 STEPHEN KIMOMO KIPRONO both who testify that they saw the accused holding a blood stained knife poised over the deceased who was lying on the ground in a pool of blood. Police were called to the scene. The accused was then arrested and charged.

The prosecution having closed their case this court must now make a determination as to whether the prosecution have established a prima facie case.

In any murder trial aside from the fact of death the prosecution is required to prove the cause of death of the deceased. Most usually this is by way of the evidence of the doctor who conducted the autopsy on the body of the deceased and by way of production of a post-mortem report. In this case no doctor came to testify and no post-mortem report was produced. The court is being invited to presume that the deceased met his death as a result of having been stabbed.

In the case of CHENGO NICKSON KALAMA Vs REPUBLIC [2015]eKLR the Court of Appeal held that

“......... save in very exceptional cases...... it is absolutely necessary that death and the cause thereof be proved beyond reasonable doubt and that can only be achieved by production of medical evidence and in particular, a post mortem examination report of the deceased.....”

That is precisely the situation that pertains in this case. No proof has been offered to establish what caused the death of the deceased. The evidence that the deceased was stabbed cannot lead to the assumption that he died from stab wounds. The link between the stabbing and the mortality of the deceased must be proved beyond reasonable doubt. That has not been done in this case.

I find that having failed to prove a crucial ingredient of the charge of murder notwithstanding the strength of other available evidence no prima facie case has been shown. I enter a verdict of ‘Not Guilty’and I acquit the accused of this charge of murder. The accused is to be set at liberty forthwith unless he is otherwise lawfully held.

Dated and Delivered in Nakuru this 3rd day of February, 2017

Mr. Kemboi holding brief for Mr. Kipkemei for Accused

Maureen A. Odero

Judge

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Authorities

Authorities used by the court

Cases, legislation, regulations, and constitutional provisions identified in the available record.

Chengo Nickson Kalama v Republic [2015] eKLR

Case cited

Penal Code (Cap 63), Sections 203 and 204

Legislation

Legislation referenced in the available case record.

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