[2010] KEHC 567 (KLR)
The court found that the prosecution had failed to present any evidence against the accused despite multiple opportunities and adjournments, including a final adjournment granted by the previous judge. The accused had remained in custody for six years without any witness testimony or evidence being adduced. This...
Source-derived case information.
- Citation
- [2010] KEHC 567 (KLR)
- Parties
- Applicant: Republic; Defendant: Dickson Ombonya Wambani
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 22 of 2004
- Procedural Posture
- Criminal Case / Ruling on No Case to Answer
- Outcome
- acquittal
- Legal Topics
- Murder Charge, Right to Fair Trial, Expeditious Trial, Acquittal, Criminal Procedure, Failure to Prosecute
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Dickson Ombonya Wambani
Defendant
Procedural Posture
Criminal Case / Ruling on No Case to Answer
Legal Issues
- 1 Whether the accused has a case to answer in the absence of prosecution evidence.
- 2 Whether the accused's constitutional right to an expeditious trial has been violated.
Ratio Decidendi
The court found that the prosecution had failed to present any evidence against the accused despite multiple opportunities and adjournments, including a final adjournment granted by the previous judge. The accused had remained in custody for six years without any witness testimony or evidence being adduced. This failure not only meant there was no case to answer under Section 306 of the Criminal Procedure Code, but also constituted a violation of the accused's constitutional right to an expeditious trial as guaranteed by Article 50(e) of the Constitution. In the absence of any evidence and in light of the prolonged delay, the court was compelled to acquit the accused.
Court Disposition
acquittal
Orders
- The accused, Dickson Ombonya Wambani, is found not guilty and acquitted under Section 306 of the Criminal Procedure Code.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLICOFKENYA
IN THE HIGH COURT OF KENYA
AT KAKAMEGA
CRIMINAL CASE NO. 22 OF 2004
REPUBLIC
V E R S U S
DICKSON OMBONYA WAMBANI ---------------------- ACCUSED
R U L I N G
1. The accused herein, DICKSON OMBONYA WAMBANIwas charged with the offence of murder contrary to S.203 and S.204 of the Penal Code. The particulars of the offence were as follows;
“That on the 2nd day of May, 2004 at Elwaswanbe village, Lubinu Sub-location, Waye Location in Butere-Mumias District within theWesternProvincemurdered CHARLES MAKOKKHA.”
He denied the charge when it was read to him on 25. 10. 2004 and the case was fixed for hearing on 26. 9.2005 and 27. 9.2005
2. For various reasons noted on the record, the hearing never commenced and when I took over the matter, I noted that Chitembwe, J. had on 5. 11. 2009 granted the prosecution the last adjournment in the matter. The record for that day reads as follows;
“5/11/09
Coram: Before S. J. Chittembwe, J.
Mr. Karuri for State
c/clerk – Dorah
Accused present
Mr. Anziya h/b for Mr. Amasakha for Accused
Mr. Karuri: I have no witnesses today. I pray for my last adjournment.
S.J.CHITEMBWE, J.
Court: Case is fixed for hearing on25/1/2010. The prosecution is granted the last adjournment.
S. J. CHITEMBWE
J U D G E”
3. Inspite of the above order, on 22. 2.2010, 22. 3.2010, 14. 7.2010 and 5. 10. 2010, the Prosecution was unable to avail any witness and the matter was deemed as closed.
4. No evidence against the accused person exists on the record and for six (6) years, he has remained in custody and yet none of his accusers has come forward to justify his continued incarceration.
5. Aside from the fact that he has no case to answer and has nothing to which he should respond to by way of a defence, his Constitutional right to an expeditious trial as enshrined in Article 50 (e) of the Constitution has been breached.
6. In the event, I have no choice but to find that the accused is not guilty and acquit him under S.306 of the Criminal Procedure Code.
7. Orders accordingly.
Dated, Signed and Delivered at Kakamega, this 18th day of October, 2010
ISAAC LENAOLA
J U D G E