[2018] KEHC 4862 (KLR)
The court found that the prosecution failed to establish a prima facie case against the accused persons. None of the prosecution witnesses provided evidence directly linking any of the accused to the unlawful act that caused the death of the deceased. The key witness, Job Omondi Andiego, exonerated the accused and...
Source-derived case information.
- Citation
- [2018] KEHC 4862 (KLR)
- Parties
- Applicant: Republic; Defendant: Felix Kenga Akech; Defendant: Nicholas Otieno Onyuro; Defendant: Maximilan Onyango Otunga; Defendant: Duncan Odhiambo Ahinda; Defendant: John Odhiambo Abuodha; Defendant: Kevin Otieno Ongany
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 57 of 2013
- Procedural Posture
- Criminal Case / Ruling at Close of Prosecution Case
- Outcome
- acquittal
- Judges
- TW Cherere
- Legal Topics
- Murder, Standard of Proof, Identification Evidence, Acquittal, Criminal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Felix Kenga Akech
Defendant
Nicholas Otieno Onyuro
Defendant
Maximilan Onyango Otunga
Defendant
Duncan Odhiambo Ahinda
Defendant
John Odhiambo Abuodha
Defendant
Kevin Otieno Ongany
Defendant
Procedural Posture
Criminal Case / Ruling at Close of Prosecution Case
Legal Issues
- 1 Whether the prosecution established a prima facie case against the accused persons to warrant putting them on their defence.
- 2 Whether there was sufficient evidence linking the accused persons to the murder of Dickson Otieno Nyamasi.
Ratio Decidendi
The court found that the prosecution failed to establish a prima facie case against the accused persons. None of the prosecution witnesses provided evidence directly linking any of the accused to the unlawful act that caused the death of the deceased. The key witness, Job Omondi Andiego, exonerated the accused and implicated another individual, Kobole, as the attacker. Additionally, the person who allegedly named the accused as suspects was not called to testify, leaving the evidence against the accused uncorroborated and insufficient. The court held that to put the accused on their defence would be an exercise in futility, as there was no evidence upon which a reasonable tribunal could...
Court Disposition
acquittal
Orders
- The accused persons are found not guilty of murder and are acquitted.
- The accused persons shall be set at liberty unless otherwise lawfully held.
Full Case Text
Judgment text and source record
38 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KISUMU
CRIMINAL CASE (MURDER) NO. 57 OF 2013
REPUBLIC....................................................PROSECUTOR
VERSUS
FELIX KENGA AKECH..................................ACCUSED 1
NICHOLAS OTIENO ONYURO.....................ACCUSED 2
MAXIMILAN ONYANGO OTUNGA............ACCUSED 3
DUNCAN ODHIAMBO AHINDA..................ACCUSED 4
JOHN ODHIAMBO ABUODHA..................ACCUSED 5
KEVIN OTIENO ONGANY..........................ACCUSED 6
RULING
1. Accused persons are jointly charged with the Offence of Murder Contrary to Section 203 as read with Section 204 of the Penal Code.
The particulars of the charge are that on 10th November, 2013 at Kadiju in Kisumu East District within Kisumu County murdered DICKSON OTIENO NYAMASI alias Kwaru
2. In support of its case, the state called a total of 4 witnesses whose evidence I have summarized as follows:
3. PW 1 Peter Onyango Obwon,deceased’s uncle found deceased’s body in a bathroom on 10. 11. 13. Together with PW2, Lucy Wanjiru Nyamasi, they identified deceased’s body to the doctor who conducted a postmortem at Jaramogi Oginga Odinga Teaching and Referral Hospital on 20. 11. 13.
4. PW5 Job Omondi Andiego recalled that on the night of 9th and 10th November, 2013, he went to a disco matanga. He stated that as he was returning home at 4. 00 am in company of his brother Harrison and deceased, they were attacked by a group of about 35 men. He stated he was able to identify Ogolla and one Kobole who was armed with a spear. It was his evidence that Kobole stabbed him on the buttocks with the spear and he ran away thereby parting ways with Harrison and Dickson. He learnt about deceased’s death the an hour later at about 5. 00 am.
5. PW4 Caled Matengo Osore,an assistant chief recalled that upon receiving the murder report, he visited the scene and found deceased’s body in the bathroom in the compound of one Caroline Onyango. It was his evidence that after the body was removed to the mprtuary, he called a meeting of village elders and one Mbuya Ocholla named accused persons herein as the suspects and they were thereafter arrested and charged. He stated that a spear suspected to have been the murder weapon was recovered from the house of accused 6.
6. PW3 PC Peter Ewoi, testified that he took over the case from PC Kwambai long after accused persons were charged. the investigating officer arrested and charged. He stated that accused persons were implicated by PW3 Job Omondi. With the consent of the defence counsel, he produced deceased’s postmortem report (PEXH. 1) which shows that deceased died of massive hemopericardium secondary to laceration of the left ventricle of the heart due to penetrating thoracic injury. He produced the spear head as PEXH. 2. and a jungle green jacket and black shirt as PEXH. 3 and 4 respectively. He also produced the government analysts report PEXH. 5 which confirmed that jungle green jacket and black shirt as PEXH. 3 and 4 were stained with deceased’s blood while the spear head was not stained with blood.
7. At the close of the prosecution case, there is no doubt that the deceased died. The postmortem form, PEXH. 1,shows that deceased died of massive hemopericardium secondary to laceration of the left ventricle of the heart due to penetrating thoracic injury.
8. None of the prosecution witnesses stated that accused persons either jointly or any of them committed the unlawful act that caused the death of the deceased. PW5 Job Omondi Andiego who is alleged to have implicated accused persons exonerated them and implicated one Kobole who he said attacked him, Harrison and the deceased on the material night and that he was armed with a spear. He however stated that he did not know how deceased met his death because he ran away from the scene of attack after Kobole stabbed him on the buttocks with a spear.
9. One Mbuya Ocholla who allegedly gave a list containing accused person names,as the suspects in the murder, to PW4 Caled Matengo Osore was not called as a witness to shed light on the said list or why he implicated accused persons.
Disposition
10. From the totality of the prosecution case, I am not persuaded that there is sufficient evidence to warrant this Court to put the Accused persons on their defences because to do so would be an academic exercise in futility.
11. Consequently, I find that there is no evidence that the accused persons or any one of them committed the offence of murder that they are charged with. I find them NOT GUILTY and order that they be set at liberty unless otherwise lawfully held. It is so ordered.
DATED AND DELIVERED IN KISUMU THIS1STDAY OF AUGUST2018
T. W. CHERERE
JUDGE
Read in open court in the presence of-
Court Assistant - Felix
Accused 1 - Present
Accused 2 - Present
Accused 3 - Present
Accused 4 - Present
Accused 5 - Present
Counsel for Accused Persons - Ms. Nyangalo h/b for Mr. Paskal
For the State - Mr. Muia