[2020] KEHC 3811 (KLR)
The court found that the prosecution failed to establish a prima facie case against the second and third accused persons, as there was no evidence connecting them to the offence of murder beyond mere association or familial relationship. The evidence presented did not meet the threshold required for a reasonable...
Source-derived case information.
- Citation
- [2020] KEHC 3811 (KLR)
- Parties
- Applicant: Republic; Defendant: Dennis Ogolla Otsieno; Defendant: Chrispinus Adala Otsieno; Defendant: Metrine Nafula Wepukhulu
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 8 of 2019
- Procedural Posture
- Criminal Case / Ruling on Prima Facie Case at Close of Prosecution's Case
- Outcome
- Second and third accused acquitted; first accused put on defence.
- Judges
- KW Kiarie
- Legal Topics
- Murder, Prima Facie Case, Criminal Liability, Acquittal, Constitutional Rights, Burden of Proof
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Dennis Ogolla Otsieno
Defendant
Chrispinus Adala Otsieno
Defendant
Metrine Nafula Wepukhulu
Defendant
Procedural Posture
Criminal Case / Ruling on Prima Facie Case at Close of Prosecution's Case
Legal Issues
- 1 Whether the prosecution established a prima facie case against each accused person to warrant putting them on their defence.
- 2 Whether the evidence on record connected the second and third accused persons to the offence of murder.
- 3 Whether the constitutional rights of the accused persons to remain silent affect the court's ability to convict at this stage.
Ratio Decidendi
The court found that the prosecution failed to establish a prima facie case against the second and third accused persons, as there was no evidence connecting them to the offence of murder beyond mere association or familial relationship. The evidence presented did not meet the threshold required for a reasonable tribunal to convict if the accused chose to remain silent. Accordingly, the court acquitted the second and third accused under section 306(1) of the Criminal Procedure Code. However, the court found that a prima facie case had been established against the first accused, based on the evidence linking him to the scene and circumstances of the alleged offence, and therefore put him...
Court Disposition
Second and third accused acquitted; first accused put on defence.
Orders
- The second and third accused persons are acquitted of the offence of murder under section 306(1) of the Criminal Procedure Code.
- The first accused is put on his defence under section 306(2) of the Criminal Procedure Code.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT BUSIA
CRIMINAL CASE NO. 8 OF 2019
REPUBLIC...............................................PROSECUTOR
VERSUS
1. DENNIS OGOLLA OTSIENO
2. CHRISPINUS ADALA OTSIENO
3. METRINE NAFULA WEPUKHULU......ACCUSED
RULING
1. Dennis Ogolla Otsieno, Chrispinus Adala Otsieno and Metrine Nafula Wepukhulu are charged with an offence of murder contrary to section 203 as read with section 204 of the Penal Code.
2. The particulars of the offence are that between the 4th day of May 2019 and 7th May 2019, at Bujumba village Bujumba Location of Butula sub County within Busia County, jointly with others not before court murdered Gentah Heldah Adhiambo.
3. Corporal Reuben Mwaniki (PW8) arrested and charged Chrispinus Adala Otsieno (accused2) because of the information he received that he used to share the house where the deceased was presumably killed with his brother Dennis Ogolla Otsieno (accused1). The evidence of Brian Otieno (PW1) however was that he (accused2) was not present when the deceased went to the house. There was no other evidence that connected him with the offence.
4. Metrine Nafula Wepukhulu (accused 3) was charged with the offence for she was the mother of accused1 and accused2 according to the evidence of Corporal Reuben Mwaniki (PW8).
5. The approach by Corporal Reuben Mwaniki (PW8) in respect of second and third accused persons shows that he does not appreciate the basic requirements of criminal liability. If he does, probably he wanted to prove that PC Danston Wangila (PW7) did not do his investigations properly.
6. Did the prosecution establish a prima facie case?In the Black’s Law Dictionary, 10th Edition prima facie case is defined as follows:
Prima facie case. (1805) I. The establishment of a legally required rebuttable presumption. 2. A party's production of enough evidence to allow the fact-trier to infer the fact at issue and rule in the party's favor.
7. The Court of appeal in the case of Ramanlal Trambaklal Bhatt v. R [1957] E.A 332 at 334 and 335, defined prima facie case as follows:
It is may not be easy to define what is meant by a “prima facie case”, but at least it must mean one on which a reasonable tribunal, properly directing its mind to the law and the evidence could convict if no explanation is offered by the defence.
8. Article 50 (2) (i) of the Constitution of Kenya provides:
(2) Every accused person has the right to a fair trial, which includes the right—
(i) to remain silent, and not to testify during the proceedings;
In the instant case, if the second and the third accused persons opt to exercise their constitutional right hereinabove stated, I cannot enter a conviction based on the evidence on record. This therefore means that the prosecution has failed to establish a prima facie case against both of them. I accordingly acquit them of the offence of murder under section 306 (1) of the Criminal Procedure Code.
9. I however find that the prosecution has established a prima facie case against the first accused. He is put on his defence under section 306 (2) of the Criminal Procedure Code.
DELIVEREDandSIGNEDatBUSIAthis4th day ofAugust,2020
KIARIE WAWERU KIARIE
JUDGE