[2017] KEHC 6253 (KLR)
The court found that the prosecution failed to establish a prima facie case against the accused. The evidence presented by the prosecution witnesses did not directly or indirectly implicate the accused in the murder of the deceased. The key eyewitness did not identify the attackers, and the forensic evidence did not...
Source-derived case information.
- Citation
- [2017] KEHC 6253 (KLR)
- Parties
- Applicant: Republic; Defendant: Evans Ratemo; Defendant: Cyrus Makori Ogero
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 87 of 2013
- Procedural Posture
- Criminal Trial / Ruling on Case to Answer at Close of Prosecution Case
- Outcome
- acquittal
- Legal Topics
- Murder, Prima Facie Case, Burden of Proof, Acquittal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Evans Ratemo
Defendant
Cyrus Makori Ogero
Defendant
Procedural Posture
Criminal Trial / Ruling on Case to Answer at Close of Prosecution Case
Legal Issues
- 1 Whether the prosecution established a prima facie case against the accused to warrant their being placed on their defence.
- 2 Whether the evidence adduced directly or indirectly implicated the accused in the murder of the deceased.
Ratio Decidendi
The court found that the prosecution failed to establish a prima facie case against the accused. The evidence presented by the prosecution witnesses did not directly or indirectly implicate the accused in the murder of the deceased. The key eyewitness did not identify the attackers, and the forensic evidence did not link the accused to the crime. The prosecution's case was based on suspicion rather than credible evidence. As a result, the court held that the accused had no case to answer and acquitted them under the law.
Court Disposition
acquittal
Orders
- Both accused are acquitted and set at liberty.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISII
CRIMINAL NO. 87 OF 2013
REPUBLIC............................................PROSECUTOR
VERSUS
EVANS RATEMO..........................................ACCUSED
CYRUS MAKORI OGERO............................ACCUSED
RULING
1. A “prima-facie” case is one in which a reasonable court properly directing its mind to the law and the evidence before it would convict if no explanation is offered by the defence.
The prosecution, at the close of its case, is required to provide not only sufficient evidence, but also credible evidence for purposes of establishing such “prima-facie” case and thus establish the material ingredients of any one charge facing an accused person.
2. Herein, both accused are alleged to have murdered Nicholas Momanyi (deceased) on the 18th July 2013, at Mwamosioma Sub-location, Kisii County.
The evidence led against them by the prosecution was that of Hesbon Matagaro (PW 1), Simon Omwenga Momanyi (PW 2)and PC Ambrose Kibaina (PW 3).
What came out of that evidence was that the deceased was on a motorcycle taxi (boda-boda) being driven at the time by Hesbon when they came under violent attack from a gang of unknown people and in the process the deceased was fatally injured while the motorcycle operator managed to escape. Later, the two accused were arrested and charged after being suspected to have been part of the violent gang.
3. The dead body of the deceased was recovered in a maize plantation by his brother (PW 2) and others. The scene was visited by PC Kibaina (PW 3) and his team. They recovered a blood stained stick, a blood stained shirt and a blood stained shoe. They were informed that the motorcycle taxi operator and another were suspected of having been involved in the crime.
The police officers removed the body of the deceased to the mortuary. The autopsy carried out by a doctor revealed that the deceased died from severe head injury due to multiple cut wounds and blunt force trauma to the head due to assault (see, P.Ex 2).
4. The blood stained items were forwarded to the Government Analyst for necessary examination. The ensuing report (P.Ex 1) did not reveal anything positive with regard to the two accused who were treated as the prime suspects and charged accordingly. The evidence expected to confirm the suspicion was that of the three aforementioned prosecution witnesses but it fell short of doing so either directly or indirectly. Hesbon (PW 1) did not see and identify the people who attacked him and the deceased. Simon (PW 2) was not at the scene during the attack. He could not really state what happened on that material date and time which led to the death of his brother.
5. Both witnesses (PW 1 and PW 2) did not at all implicate the two accused even though they confirmed that the death of the deceased was as a result of a criminal act. Their evidence coupled with that of the investigating officer (PW 3) was incapable of establishing the material ingredients of the offence of murder against the two accused and showed that the accused were arrested and charged on mere suspicion.
Ultimately, the prosecution failed to establish a “prima-facie” case against both accused to warrant them to be placed on their defence. The two have no case to answer and are hereby acquitted and set at liberty.
[Delivered and signed this 26th day of April 2017]
J.R. KARANJAH
JUDGE
In the presence of
Njoroge/Dorothy CC
Ms. Ouko - State Counsel
Mr. Okenye for accused
Accused 1-2
J.R. Karanjah , J