[2021] KEHC 4947 (KLR)
The court found that all prosecution witnesses gave hearsay evidence and none witnessed the alleged murder. As a result, there was no direct or circumstantial evidence linking the accused to the offence. The court held that suspicion, however strong, is not sufficient to establish guilt, and the prosecution failed...
Source-derived case information.
- Citation
- [2021] KEHC 4947 (KLR)
- Parties
- Respondent: Republic; Defendant: Douglas Owino Ochieng
- Court
- High Court
- Court Station
- High Court at Homa Bay
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 16 of 2018
- Procedural Posture
- Criminal Case / Ruling on No Case to Answer
- Outcome
- acquittal
- Judges
- KW Kiarie
- Legal Topics
- Murder, Prima Facie Case, Hearsay Evidence, Burden of Proof
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Respondent
Douglas Owino Ochieng
Defendant
Procedural Posture
Criminal Case / Ruling on No Case to Answer
Legal Issues
- 1 Whether the prosecution established a prima facie case against the accused for the offence of murder.
- 2 Whether hearsay evidence is sufficient to sustain a charge of murder.
- 3 Whether the accused should be put on his defence or acquitted at this stage.
Ratio Decidendi
The court found that all prosecution witnesses gave hearsay evidence and none witnessed the alleged murder. As a result, there was no direct or circumstantial evidence linking the accused to the offence. The court held that suspicion, however strong, is not sufficient to establish guilt, and the prosecution failed to establish a prima facie case as required by law. Consequently, the accused could not be called upon to defend himself, and an acquittal was warranted under section 306(1) of the Criminal Procedure Code.
Court Disposition
acquittal
Orders
- The accused, Douglas Owino Ochieng, is acquitted of the offence of murder under section 306(1) of the Criminal Procedure Code.
- He is to be set at liberty unless otherwise lawfully held.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT HOMA BAY
CRIMINAL CASE NO. 16 OF 2018
REPUBLIC..................................................PROSECUTOR
VERSUS
DOUGLAS OWINO OCHIENG.........................ACCUSED
RULING
1. Douglas Owino Ochieng is 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 on the 23rd day of April, 2018, at Kojwach location in Rachuonyo South Sub County of Homa Bay County, murdered Wycliffe Okido.
3. All the prosecution witnesses who testified did not witness the incident. Their evidence was inadmissible hearsay. This will therefore mean that the accused was charged on mere suspicion. The Court of Appeal in in the case of Sawe vs. Republic[2003] KLR 354, the Court of Appeal held as follows:
Suspicion, however strong, cannot provide the basis of inferring guilt which must be proved by evidence beyond reasonable doubt.
4. After considering the evidence on record, the question is whether the prosecution has establish a prima facie case against the accused. 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.
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 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.
5. 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;
6. In the instant case, if the accused opts to exercise his 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 him. I accordingly acquit him of the offence of murder under section 306 (1) of the Criminal Procedure Code. He is set at liberty unless if otherwise lawfully held.
DELIVERED AND SIGNED AT HOMA BAY THIS 22ND DAY OF JULY, 2021
KIARIE WAWERU KIARIE
JUDGE