[2008] KEHC 2952 (KLR)
The court found that the prosecution had established a prima facie case against the first accused, Febias Wanjala Rasto, based on the evidence on record, thereby requiring him to be placed on his defence under section 306(2) of the Criminal Procedure Code. However, the court found that the evidence against the...
Source-derived case information.
- Citation
- [2008] KEHC 2952 (KLR)
- Parties
- Applicant: Republic; Defendant: Febias Wanjala Rasto; Defendant: Stephen Barasa Wanyonyi
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 55 of 2005
- Procedural Posture
- Criminal Case / Ruling at Close of Prosecution Case
- Outcome
- Accused 1 placed on defence; Accused 2 acquitted at close of prosecution case.
- Legal Topics
- Murder Charge, Prima Facie Case, Acquittal, Criminal Procedure, Burden of Proof
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Febias Wanjala Rasto
Defendant
Stephen Barasa Wanyonyi
Defendant
Procedural Posture
Criminal Case / Ruling at Close of Prosecution Case
Legal Issues
- 1 Whether a prima facie case has been established against each accused to require them to be placed on their defence.
- 2 Whether the evidence adduced links both accused persons to the offence of murder.
Ratio Decidendi
The court found that the prosecution had established a prima facie case against the first accused, Febias Wanjala Rasto, based on the evidence on record, thereby requiring him to be placed on his defence under section 306(2) of the Criminal Procedure Code. However, the court found that the evidence against the second accused, Stephen Barasa Wanyonyi, was insufficient. The key eyewitnesses did not place him at the scene, and the only witness who mentioned him merely saw him leaving the scene and did not see him participate in the alleged offence. The court held that this was insufficient to require the second accused to be placed on his defence, and accordingly acquitted him under section...
Court Disposition
Accused 1 placed on defence; Accused 2 acquitted at close of prosecution case.
Orders
- Febias Wanjala Rasto is placed on his defence pursuant to section 306(2) of the Criminal Procedure Code.
- Stephen Barasa Wanyonyi is acquitted under section 306(1) of the Criminal Procedure Code and is to be set at liberty unless otherwise lawfully held.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
Criminal Case 55 of 2005
REPUBLIC....................................................................PROSECUTOR
VERSUS
FEBIAS WANJALA RASTO
STEPHEN BARASA WANYONYI :::::::::::::::: ACCUSED
RULING
Both accused persons herein are jointly charged with murder contrary to section 203 as read with section 204 of the Penal Code. They both pleaded ‘not guilty’ to the charge. The prosecution closed its case after calling 9 witnesses. Both counsel in this matter made submissions at the close of the prosecution case with counsel for the accused persons urging the court to acquit the accused persons at this stage while the state counsel urged the court to place the accused persons onto their defence. I have considered carefully the evidence so far on record along with the said submissions. As far as accused 1 “FEBIAS WANJALA RASTO” is concerned, I am satisfied that a prima facie case has been made out against him to require him to be placed onto his defence. He is accordingly placed onto his defence pursuant to section 306 (2) of the Criminal Procedure Code.
As far as accused 2 is concerned, I note that the eye witnesses namely PW1 Julius Wanyonyi, PW2 – Patrick Wanyonyi and PW3 Joseph Simiyu Mtoto all said that they did not see accused 2 at the scene. The only witness to even remotely connect the 2nd accused with the offence was PW5 – Paul Wamalwa Weluaya. His evidence however was that as he was going to the scene to check on what was happening, he met with accused 2 as he was leaving the scene. He said that it was accused 2 who had told him that somebody was being beaten at the scene and that the person had even tried to stab accused 2. This witness did not however say that he saw accused 2 armed or that he had seen him hit the deceased. The evidence that pw5 saw accused 2 leaving the scene is just a scintilla of evidence which in my considered view does not warrant accused 2 to be placed onto his defence in order for him to defend himself. Accordingly, my finding is that no prima facie case has been established against him to require him to be placed onto his defence. Accordingly I enter a finding of “not guilty” in his favour and acquit him under section 306 (1) of the Criminal Procedure Code. He is ordered set at liberty unless he is otherwise lawfully held.
W. KARANJA
JUDGE
26/2/2008
DELIVERED today in open court in presence of both accused – Mr. Situma for them and Mr. Onderi for state.
W. KARANJA
JUDGE