[2020] KEHC 4781 (KLR)
The court found that the prosecution failed to establish a prima facie case against the accused. The only evidence linking the accused to the offence was the deceased allegedly calling out the accused's name, which was not corroborated by any other witness, particularly Petronila, who was present at the scene but...
Source-derived case information.
- Citation
- [2020] KEHC 4781 (KLR)
- Parties
- Applicant: Republic; Defendant: Geoffrey Onyango Mukhwaya
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 9 of 2019
- Procedural Posture
- Criminal Case / Ruling on No Case to Answer
- Outcome
- acquittal
- Judges
- KW Kiarie
- Legal Topics
- Murder, Prima Facie Case, Acquittal, Burden of Proof
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Geoffrey Onyango Mukhwaya
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 to warrant putting him on his defence.
- 2 Whether the failure to call a key witness (Petronila) affected the prosecution's case.
- 3 Whether the accused can be convicted based solely on the evidence presented.
Ratio Decidendi
The court found that the prosecution failed to establish a prima facie case against the accused. The only evidence linking the accused to the offence was the deceased allegedly calling out the accused's name, which was not corroborated by any other witness, particularly Petronila, who was present at the scene but was not called to testify. The court held that the failure to call this key witness and the lack of explanation for her absence undermined the prosecution's case. In accordance with the principles set out in Bukenya vs. Uganda and Ramanlal Trambaklal Bhatt v. R, the court inferred that the evidence of the uncalled witness would have been adverse to the prosecution. Consequently,...
Court Disposition
acquittal
Orders
- The accused, Geoffrey Onyango Mukhwaya, is acquitted of the offence of murder under section 306(1) of the Criminal Procedure Code.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT BUSIA
CRIMINAL CASE NO. 9 OF 2019
REPUBLIC.............................................................................................PROSECUTOR
VERSUS
GEOFFREY ONYANGO MUKHWAYA.....................................................ACCUSED
RULING
1. Geoffrey Onyango Mukhwaya 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 28th day of May 2019, at Lunga village Nasewa Location of Matayos sub County within Busia County, jointly with others not before court murdered Aggrey Wanjala Machehe.
3. According to the evidence of Tylence Nekesa Juma (PW1) Petronila Nasimiyu and the deceased went to greet him. This was at about 7. 40 p.m. The two were husband and wife who started cohabiting after the marriage between the accused and Petronila had broken down.
4. The duo left at 7. 45 p.m. on a motor cycle. It was the deceased who was the rider. When they reached the main road, he heard Petronila raise an alarm saying that they were dying. He then heard the deceased ask twice: “Geoffrey, why are you killing me?”When he went to the scene, he did not find Petronila. He only found the deceased, his motor cycle and phone. The deceased had serious injuries on the head.
5. When this (P.W.1) witness reported to the area chief, he did not volunteer to him what he had heard the deceased say. The question that crosses one’s mind is why he withheld such crucial information that could have led to establishing the identity of the killer.
6. The second issue that is very crucial is the assumption that the Geoffrey, the deceased, was referring to was the accused. This could have been resolved had Petronila been called as a witness. She was not called and no explanation was proffered. In the case of Bukenya vs. Uganda [1972] EA 549,(Lutta Ag. Vice President) held:
The prosecution must make available all witnesses necessary to establish the truth even if their evidence may be inconsistent.
Where the evidence called is barely adequate, the Court may infer that the evidence of uncalled witnesses would have tended to be adverse to the prosecution.
7. 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.
8. 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 is 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.
9. 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;
In the instant case, if the accused opts to exercise her 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 her. I accordingly acquit her of the offence of murder under section 306 (1) of the Criminal Procedure Code.
DELIVERED AND SIGNED AT BUSIA THIS 23RD DAY OF JUNE, 2020
KIARIE WAWERU KIARIE
JUDGE