[2018] KEHC 8775 (KLR)
The court found that the prosecution failed to establish a prima facie case against the accused due to the absence of key witnesses who were critical to linking the accused to the offence. The evidence presented did not sufficiently place the accused at the scene or prove his involvement in the murder beyond...
Source-derived case information.
- Citation
- [2018] KEHC 8775 (KLR)
- Parties
- Defendant: J O O; Appellant: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 63 of 2011
- Procedural Posture
- Criminal Case / Ruling at Close of Prosecution Case
- Outcome
- acquittal
- Judges
- DAS Majanja
- Legal Topics
- Murder Charge, Burden of Proof, Acquittal, Criminal Procedure, Evidence Requirements
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
J O O
Defendant
Republic
Appellant
Procedural Posture
Criminal Case / Ruling at Close of Prosecution Case
Legal Issues
- 1 Whether the prosecution established a prima facie case to warrant the accused to be put on his defence.
- 2 Whether the absence of key witnesses fatally weakened the prosecution's case.
- 3 Whether the evidence adduced linked the accused to the murder beyond reasonable doubt.
Ratio Decidendi
The court found that the prosecution failed to establish a prima facie case against the accused due to the absence of key witnesses who were critical to linking the accused to the offence. The evidence presented did not sufficiently place the accused at the scene or prove his involvement in the murder beyond reasonable doubt. The court held that suspicion, however strong, cannot substitute for proof, and in the absence of direct or circumstantial evidence connecting the accused to the crime, it would be unsafe to call upon him to make his defence. Consequently, the court entered a not guilty verdict and acquitted the accused under section 306(1) of the Criminal Procedure Code.
Court Disposition
acquittal
Orders
- The accused, J O O, is acquitted under section 306(1) of the Criminal Procedure Code.
- The accused is to be set free unless otherwise lawfully held.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT AT KISUMU
CRIMINAL CASE NO. 63 OF 2011
BETWEEN
REPUBLIC ................................................... PROSECUTOR
AND
J O O ….……………........................................... ACCUSED
RULING
1. J O O (“the accused”) is charged with the murder of W O O contrary to section 203 as read with section 204 of the Penal Code (Chapter 63 of the Laws of Kenya). The incident took place on 21st October 2011 at around 12. 00pm at East Othany Sub-location, Kisumu West District of then Nyanza Province. The accused pleaded not guilty. Once the trial commenced, he was diagnosed with a mental illness and had to be committed to a psychiatric facility for treatment. After the doctor certified that he was fit to stand trial and follow the proceedings, the trial continued. The prosecution marshalled 4 witnesses.
2. The case against the accused is that on the material day he was left behind with the deceased, his nephew, who was aged 2½ years by the mother as she went to the river. When the child’s mother, E A returned, the child was dead. The information was relayed to Rosa Akinyi Ogutu (PW 2) and Philip Onyango Ogutu (PW 3) by one Calistus Omondi, a work hand employed by the neighbour. Both PW 2 and PW 3 arrived at the scene after the incident. According to PC Stanley Kisang (PW 4), the accused was arrested by villagers and taken to Obola AP Post from where he was re-arrested by the police and charged.
3. A post-mortem was done by Dr Muturi (PW 1) on 24th October 2011 at the then New Nyanza General Hospital. He certified that the deceased died from asphyxia secondary to suspected smothering. He also observed blunt trauma on the anterior-occipital joint which was dislocated.
4. It is clear that the key witnesses, E A, the mother of the deceased, who first informed PW 2 and Calistus Omondi, who informed PW 3 of the child’s death, were not called to give evidence. Both of them could not be traced at the time of hearing. The former had left the home after death of the child while the latter could not be traced as he was merely employed in the village at the time.
5. In the absence of these two critical and first hand witnesses, it is difficult to establish where the accused was at the time of death of the deceased, his proximity to the locus in quo and whether he is the only one who could have murdered the child. In these circumstances, I cannot call upon the accused to make his defence even though the suspicion against him is great.
6. I have no option but to enter a not guilty verdict under section 306(1) of the Criminal Procedure Code(Chapter 75 of the Laws of Kenya). The accused, J O O is accordingly acquitted. He is set free unless otherwise lawfully held.
DATED and DELIVERED at KISUMU this 31st day January of 2018.
D.S. MAJANJA
JUDGE
Mr Taremwa, Advocate for the accused.
Ms Barasa, Prosecution Counsel, instructed by the Office of the Director of Public Prosecutions, for the State.