[2018] KEHC 8258 (KLR)
The court found that the prosecution failed to establish a prima facie case against the accused. None of the prosecution witnesses saw the accused commit the murders, the identification process was unreliable, no weapons were recovered, and no ballistic tests were conducted. The investigation was found to be lacking...
Source-derived case information.
- Citation
- [2018] KEHC 8258 (KLR)
- Parties
- Applicant: Republic; Defendant: Hassan Guyo Kampicha alias Bonaya
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 51 of 2012
- Procedural Posture
- Criminal Case / Ruling on No Case to Answer at Close of Prosecution Case
- Outcome
- acquittal
- Judges
- F Gikonyo
- Legal Topics
- Prima Facie Case, Murder Charges, Identification Evidence, Acquittal, Burden of Proof
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Hassan Guyo Kampicha alias Bonaya
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 warrant calling him to enter his defence.
- 2 Whether the evidence adduced by the prosecution could sustain a conviction if the accused offered no explanation.
Ratio Decidendi
The court found that the prosecution failed to establish a prima facie case against the accused. None of the prosecution witnesses saw the accused commit the murders, the identification process was unreliable, no weapons were recovered, and no ballistic tests were conducted. The investigation was found to be lacking in thoroughness, with key suspects not arrested or investigated. Applying the standard from RAMANLAL BHATT vs. R and section 306(1) of the Criminal Procedure Code, the court held that there was no evidence upon which a reasonable tribunal could convict the accused if he offered no explanation. Consequently, the accused was acquitted at the close of the prosecution case.
Court Disposition
acquittal
Orders
- The accused is found not guilty pursuant to section 306(1) of the Criminal Procedure Code.
- The accused is acquitted and set at liberty unless otherwise lawfully held.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MERU
CRIMINAL CASE NO.51 OF 2012
REPUBLIC
Versus
HASSAN GUYO KAMPICHA alias BONAYA
RULING
No case to answer
[1] Upon close of the prosecution’s case, I should now determine whether the prosecution has established a prima facie case against the accused as to be called upon to enter on his defence. See section 306 of the Criminal Procedure Code:-
306. (1) When the evidence of the witnesses for the prosecution has been concluded, the court, if it considers that there is no evidence that the accused or any one of several accused committed the offence shall, after hearing, if necessary, any arguments which the advocate for the prosecution or the defence may desire to submit, record a finding of not guilty.
(2) When the evidence of the witnesses for the prosecution has been concluded, the court, if it considers that there is evidence that the accused person or any one or more of several accused persons committed the offence, shall inform each such accused person of his right to address the court, either personally or by his advocate (if any), to give evidence on his own behalf, or to make an unsworn statement, and to call witnesses in his defence, and in all cases shall require him or his advocate (if any) to state whether it is intended to call any witnesses as to fact other than the accused person himself; and upon being informed thereof, the judge shall record the fact.
(3) If the accused person says that he does not intend to give evidence or make an unsworn statement, or to adduce evidence, then the advocate for the prosecution may sum up the case against the accused person; but if the accused person says that he intends to give evidence or make an unsworn statement, or to adduce evidence, the court shall call upon him to enter upon his defence.
Needless to state that this exercise is not just a mundane ritual; it is an essential part of criminal trial, for it ensures that no one continues to stand trial unless there is a prima facie case established against him at the close of the prosecution case. It is founded upon the right to fair trial and gives effect to the presumption of innocence of the accused at all stages of trial.
Prima facie case
[2] What is prima facie case? We learnt this in our early stages of university education. But, as I have stated, the subject is as important today as it has always been in criminal justice. Prima facie case is said to be:-
‘’…one which a reasonable tribunal properly directing its mind to the law and the evidence would convict if no explanation is offered by the defence’’. See RAMANLAL BHATT vs. R (1957) EA 332(CA)
[3] The accused is facing 8 counts of murder charges. The heinous crimes herein were committed against 9 innocent persons- alas, they lost their lives in that fateful night. In support of their case, the prosecution called a total of six witnesses. I have perused the record and this is what it portends. None of the prosecution witness saw the accused shoot any of the deceased persons. I am aware that PW1 JOHN GITONGA stated that he saw the accused on the fateful morning carrying a bag which belonged to M’Murwabua. But he did not see him shoot anybody. Nonetheless, the manner in which he identified the accused at the police station and in the office of the OCS is wanting. Again, the Investigations Officer one Amos Sergon Tebeny (PW6) admitted that he did not conduct any identification parade. He also stated that the weapons used to commit the murders were never recovered. Ballistic test was also not done of the cartridges. Bur before I close, one surprising thing is that PW6 stated that amongst those who attended the secret meetings on 5th and 6th June 2012 to plan the revenge mission was a Councilor of Kina, Ali Wario, Chief Jilo Halake of Kina North, Hassan Kurache, a councilor. These persons were not arrested. In addition, despite the crimes in question being heinous and tainted with ethnic hostilities, investigations in this case were not done with due care and thoroughness. That notwithstanding, it is apparent that there is no evidence:-
‘’…which a reasonable tribunal properly directing its mind to the law and the evidence would convict if no explanation is offered by the defence’’. See RAMANLAL BHATT (supra).
In the upshot, I find that the prosecution did not establish a prima facie case on which the accused could be called to mount his defence. I, therefore, record a finding of not guilty pursuant to section 306 (1) of the CPC and accordingly acquit the accused. It is so ordered.
Dated, signed and delivered in open court at Meru this 22nd day of February, 2018.
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F. GIKONYO
JUDGE
In the presence of:
Accused – present
Mr.Kinyua advocate for State
Munene advocate for Murithi advocate for accused
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F. GIKONYO
JUDGE