[2018] KEHC 3291 (KLR)
The court found that the prosecution had failed to adduce any evidence against the 2nd, 3rd, and 4th accused persons, as the key witness had died and the remaining witnesses could not be traced. In the absence of any evidence, the court held that there was no case to answer against the accused persons. Accordingly,...
Source-derived case information.
- Citation
- [2018] KEHC 3291 (KLR)
- Parties
- Applicant: Republic; Defendant: Enock Nyabuto; Defendant: John Ochwari; Defendant: Richard Ombiro Resi; Defendant: Alloys Ogeo
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 23 of 2014
- Procedural Posture
- Criminal Case / Ruling on No Case to Answer / Acquittal
- Outcome
- acquittal of 2nd, 3rd, and 4th accused; 1st accused previously convicted of manslaughter
- Judges
- REA Ougo
- Legal Topics
- Murder Charge, Manslaughter Plea, Acquittal Procedure, Criminal Procedure Code
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Enock Nyabuto
Defendant
John Ochwari
Defendant
Richard Ombiro Resi
Defendant
Alloys Ogeo
Defendant
Procedural Posture
Criminal Case / Ruling on No Case to Answer / Acquittal
Legal Issues
- 1 Whether the prosecution has adduced sufficient evidence to establish a prima facie case against the 2nd, 3rd, and 4th accused persons for the offence of murder.
- 2 Whether the accused persons should be acquitted under Section 210 of the Criminal Procedure Code due to lack of evidence.
Ratio Decidendi
The court found that the prosecution had failed to adduce any evidence against the 2nd, 3rd, and 4th accused persons, as the key witness had died and the remaining witnesses could not be traced. In the absence of any evidence, the court held that there was no case to answer against the accused persons. Accordingly, the court acquitted the 2nd, 3rd, and 4th accused persons under Section 210 of the Criminal Procedure Code and ordered their immediate release unless otherwise lawfully held.
Court Disposition
acquittal of 2nd, 3rd, and 4th accused; 1st accused previously convicted of manslaughter
Orders
- The 2nd, 3rd, and 4th accused persons are acquitted under Section 210 of the Criminal Procedure Code.
- The 2nd, 3rd, and 4th accused persons shall be freed unless otherwise lawfully held.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISII
CRIMINAL CASE NO.23 OF 2014
REPUBLIC ............................................................. PROSECUTION
-VERSUS-
ENOCK NYABUTO ................................................. 1ST ACCUSED
JOHN OCHWARI ................................................... 2ND ACCUSED
RICHARD OMBIRO RESI ................................... 3RD ACCUSED
ALLOYS OGEO ..................................................... 4TH ACCUSED
RULING
1. JOHN OCHWARI (2nd accused), RICHARD OMBIRO RESI (3rd Accused) and ALLOYS OGEO(4th accused) jointly face a charge of murder contrary to Section 203 as read with Section 204. The particulars of the offence are that, ‘On diverse dates of between 18th and 19th January, 2014 at Gesabakwa village, Onywere sub-location in Marani district within Kisii County, jointly murdered OSUMA MENGE.
2. The 2nd, 3rd and 4th accused person pleaded not guilty to the said charge. ENOCK NYABUTO 1st accused pleaded guilty to lesser offence of manslaughter and was sentenced to 7 years imprisonment on the 9th of May 2016. The case came for hearing on several occasions from the date of plea. On 6th of June 2018 the prosecution was given last adjournment and the matter was scheduled for hearing on 25th September 2018. Today the prosecution has informed the court that they have no witnesses to call, as the key witness died and the three other witnesses have moved to unnamed locations cannot not be traced. The prosecution has failed to adduce any evidence to support the charge of murder brought against the 2nd, 3rd and 4th accused persons. In the absence of any evidence against the 2nd, 3rd and 4th accused persons the charge against them cannot stand; each accused person has no case to answer. The 2nd, 3rd and 4th accused persons are acquitted under Section 210 of the Criminal Procedure Code. The 2nd, 3rd and 4th accused persons shall be freed unless lawfully held.
Dated signed and delivered this 25th day of September 2018
R.E OUGO
JUDGE
In the presence of;
Accused No.2, 3 & 4 Present
Mr. Otieno For the State
Mr. Sagwe For the Accused
Ms Rael Court/ Clerk