Republic v Gitau [2025] KEHC 5204 (KLR)
- Citation
- [2025] KEHC 5204 (KLR)
- Status
- Judgment
- Jurisdiction
- Kenya
- Court
- High Court
- Panel
- KW Kiarie
- Case number
- Criminal Case 69 of 2023
- Language
- English
More details
- Court
- High Court
- Panel
- KW Kiarie
- Case number
- Criminal Case 69 of 2023
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found that the prosecution's case was based on suspicion and hearsay, with no direct or conclusive circumstantial evidence linking the accused to the murder. The key witness who allegedly implicated the accused was not called, rendering the evidence inadmissible hearsay. The circumstantial evidence presented did not exclude other reasonable hypotheses nor was it incompatible with the innocence of the accused. The doctrine of 'last seen with' could not be invoked due to lack of evidence on the time of death. The court held that suspicion, however strong, cannot substitute for proof beyond reasonable doubt. Consequently, the prosecution failed to establish a prima facie case as defined in law, and the accused could not be called upon to answer the charge. The accused was therefore acquitted under section 306(1) of the Criminal Procedure Code.
Court disposition
acquittal at no case to answer
Orders
- The accused, Joseph Kamau Gitau, is acquitted of the offence of murder under section 306(1) of the Criminal Procedure Code.
- He is set at liberty unless otherwise lawfully held.
02
Material facts
Parties
Republic
ApplicantJoseph Kamau Gitau
Defendant03
Procedural history
Posture
Criminal Case / Ruling on No Case to Answer
04
Questions and positions
Legal issues
- 01
Whether the prosecution established a prima facie case against the accused to warrant putting him on his defence.
- 02
Whether circumstantial and hearsay evidence adduced was sufficient to infer guilt beyond reasonable doubt.
Party arguments
- Applicant
- The prosecution argued that the accused was implicated by a witness and was last seen with the deceased. They relied on circumstantial evidence and suspicion to link the accused to the murder of Esther Wambui Wanjiru.
- Respondent
- The accused, through cross-examination and submissions, contended that the evidence was hearsay, circumstantial, and insufficient to establish a prima facie case. The defence argued that there was no direct evidence or conclusive link to the offence.
05
Court’s reasoning
Legal principles
- 01
Mohamed & 3 Others vs Republic [2005] 1 KLR 722; Republic vs Kipkering arap Koskei & Another 16 EACA 135
Circumstantial evidence must exclude every hypothesis except that of guilt and be incompatible with innocence.
- 02
Sawe vs Republic [2003] KLR 354
Suspicion, however strong, cannot provide the basis of inferring guilt which must be proved by evidence beyond reasonable doubt.
- 03
Ramanlal Trambaklal Bhatt v. R [1957] E.A 332
A prima facie case is 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.
- 04
Article 50(2)(i) Constitution of Kenya
Every accused person has the right to a fair trial, including the right to remain silent and not to testify during proceedings.
06
Ratio, limits and disposition
Ratio decidendi
The court found that the prosecution's case was based on suspicion and hearsay, with no direct or conclusive circumstantial evidence linking the accused to the murder. The key witness who allegedly implicated the accused was not called, rendering the evidence inadmissible hearsay. The circumstantial evidence presented did not exclude other reasonable hypotheses nor was it incompatible with the innocence of the accused. The doctrine of 'last seen with' could not be invoked due to lack of evidence on the time of death. The court held that suspicion, however strong, cannot substitute for proof beyond reasonable doubt. Consequently, the prosecution failed to establish a prima facie case as defined in law, and the accused could not be called upon to answer the charge. The accused was therefore acquitted under section 306(1) of the Criminal Procedure Code.
Obiter and limits
- Had the prosecution presented evidence concerning the time of the deceased's death, it might have been helpful.
- The doctrine of 'last seen with' cannot be invoked in the absence of evidence on the time of death.
Court disposition
acquittal at no case to answer
- The accused, Joseph Kamau Gitau, is acquitted of the offence of murder under section 306(1) of the Criminal Procedure Code.
- He is set at liberty unless otherwise lawfully held.
Source and reliance status
High Court
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Judgment reading view
Judgment text
The complete available source text.
High Court
Judgment
Republic v Gitau (Criminal Case 69 of 2023) [2025] KEHC 5204 (KLR) (30 April 2025) (Ruling)
Neutral citation: [2025] KEHC 5204 (KLR)
Republic of Kenya
In the High Court at Ol Kalou
Criminal Case 69 of 2023
KW Kiarie, J
April 30, 2025
Between
Republic
Prosecution
and
Joseph Kamau Gitau
Accused
Ruling
1. Joseph Kamau Gitau 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 4th day of March 2023, at Gathiriga, in Kipipiri area Sub County within Nyandarua County, he murdered Esther Wambui Wanjiru.
3. The evidence adduced against the accused was evidence of suspicion. James Wachira Mungai (PW1) testified that the accused was implicated in the offence by his sister, Wangui. He did not testify why she implicated him, and she was not called as a witness. Without calling Wangui. This is inadmissible hearsay.
4. Benson Mwangi Waithaka (PW7) testified that the deceased and the accused went to his shop, where the deceased wanted some loose change. This was between 2 p.m. and 3 p.m. This is circumstantial evidence. In the case of Mohamed & 3 Others vs Republic [2005]1KLR 722, Osiemo, Judge restated what circumstantial evidence is, as follows:Circumstantial evidence means evidence that tends to prove a fact indirectly by proving other events or circumstances which afford a basis for reasonable inference of the occurrence of the fact at issue. The circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved.
5. Earlier, in the case of Republic vs Kipkering arap Koskei & Another 16 EACA 135, the Court of Appeal held:In order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt.
6. Had the prosecution presented evidence concerning the time of the deceased's death, it might have been helpful. However, this was not the case. The doctrine of “last seen with” cannot equally be invoked.
7. The other witnesses adduced evidence of suspicion without explaining why the accused was suspected of being the killer. The Court of Appeal in the case of Sawe vs Republic [2003] KLR 354, held as follows:Suspicion, however strong, cannot provide the basis of inferring guilt which must be proved by evidence beyond reasonable doubt.
8. After considering the evidence on record, the question is whether the prosecution has established a prima facie case against the accused person. 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.
9. The Court of Appeal in the case of Ramanlal Trambaklal Bhatt v. R [1957] E.A 332 at 334 and 335, defined a prima facie case as follows:It 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.
10. 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 person opts to exercise his constitutional right as stated above, 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 him. I accordingly acquit him of the offence of murder under section 306 (1) of the Criminal Procedure Code. He is set at liberty unless otherwise lawfully held.
DELIVERED AND SIGNED AT OL KALOU THIS 30THDAY OF APRIL 2025KIARIE WAWERU KIARIEJUDGE
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