[2018] KEHC 99 (KLR)
The court found that there was no evidence, direct or circumstantial, connecting the accused to the offence of murder. The only witness who mentioned the accused did not place him in the company of the deceased at the material time, and the investigating officer did not testify to provide any link between the...
Source-derived case information.
- Citation
- [2018] KEHC 99 (KLR)
- Parties
- Applicant: Republic; Defendant: Gibert Kiboi
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 55 of 2009
- Procedural Posture
- Criminal Case / Ruling on No Case to Answer at Close of Prosecution Case
- Outcome
- acquittal
- Legal Topics
- Murder, Prima Facie Case, No Case to Answer, Evidentiary Burden
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Gibert Kiboi
Defendant
Procedural Posture
Criminal Case / Ruling on No Case to Answer at Close of Prosecution Case
Legal Issues
- 1 Whether the prosecution established a prima facie case against the accused to require him to be put on his defence.
- 2 Whether there was any evidence linking the accused to the offence of murder.
- 3 Whether the accused should be acquitted under section 210 of the Criminal Procedure Code.
Ratio Decidendi
The court found that there was no evidence, direct or circumstantial, connecting the accused to the offence of murder. The only witness who mentioned the accused did not place him in the company of the deceased at the material time, and the investigating officer did not testify to provide any link between the accused and the crime. The post mortem report could not establish the cause of death. Consequently, the prosecution failed to establish a prima facie case against the accused. In accordance with the legal standard for a prima facie case and the requirements of section 210 of the Criminal Procedure Code, the accused was found to have no case to answer and was acquitted.
Court Disposition
acquittal
Orders
- The accused is acquitted of the charge of murder under section 210 of the Criminal Procedure Code.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KAKAMEGA
CRIMINAL CASE NO. 55 OF 2009
REPUBLIC...........................................................................................................STATE
VERSUS
GIBERT KIBOI ...........................................................................................ACCUSED.
RULING
1. The accused herein is facing a charge of murder contrary to section 203 as read with section 204 of the penal code. The particulars of the offence are that on the 11th day of October, 2009 in Mt. Elgon District within Western province , he murdered LCN (herein referred to as the deceased).
2. The prosecution called 7 witnesses in the case. Their case was that on the 11th October, 2009 the deceased minor left her home in the company of two other minor children Pw1 and 2 and went to the home of the deceased’s aunt called F . The place was about 30 minutes walk from the home of the deceased. On getting there the children were received by Catherine Chebet PW3. The children stayed at the home until 4 pm when they took the return journey. They reached at their home at 6 pm. The children parted with the deceased and went to their separate homes. The deceased was never seen again. The mother to the deceased Pw4 looked for her to no avail.
3. Sometimes later a skull was found in the shamba of Joyce PW5. The deceased’s mother PW4 went to the scene but she was unable to identify the skull. Later some clothes were found near the place where the skull had been found. The mother to the deceased went to the place and identified the clothes as those of the deceased. Policemen were called who went there and took the clothes.
4. On the 12/11/09, a doctor at Webuye District Hospital conducted a postmortem on the body. The doctor could not identify the gender as only a skeleton was remaining with no flesh. The time of death was estimated at between 2 and 12 weeks. From the state of the skeleton the doctor could not determine the cause of death. The post mortem report was produced in court as exhibit - EX 1.
5. The investigating officer did not turn up to testify in the case. There was no evidence as to why the accused was arrested and charged with the offence.
6. The only witness who mentioned the accused in the case was Catherine Chebet PW3. Her evidence was that on the material day she was at the home of her aunt F. That at midday PW2 and the deceased went to the home. That the family herdsman ,the accused ,was not at the home when the children arrived at the home. He returned home between 1 an d 2 Pm and she served him with lunch. The children were at the time in the shamba. That in the evening she escorted the children upto Cheptais and left them to go home. That when she walked the children to Cheptais the accused was herding cows in the opposite direction.
7. At the close of the prosecution case, the counsel for the accused Mr. Munyendo, submitted that the prosecution has not established a prima facie case against the accused. That there is no circumstantial evidence against him. That no witness gave evidence to link him with the offence. That the post mortem did not establish the cause of death. Counsel urged the court to acquit the accused under no case to answer.
8. A prima facie case, it has been held , is one on which the court could convict on the evidence adduced by the prosecution if no explanation is offered by the defence – see Ramanlal Trambaklal Vs Republic ( 1957) EA 332.
9. In this case there was virtually no evidence adduced that tended to connect the accused with the offence. There was no evidence why he was arrested and charged with the offence. There was no evidence that he was sighted in the company of the deceased. The evidence available cannot lead to the conviction of the accused if the accused offered to give no defence. The prosecution has thereby not established a prima facie case against the accused. The accused has no case to answer and is accordingly acquitted of the charges under section 210 of the Criminal procedure Code.
Delivered, Dated and signed at Kakamega this 4th day of July,2018
J.NJAGI
JUDGE
In the presence of :
Ngetich ……………………………………….....…..for state
Munyondo………………………………………........for accused.
George…. …………………………………….......….court assistant