[2019] KEHC 9892 (KLR)
The court found that the prosecution failed to establish a prima facie case against the accused. The identification evidence was unreliable, as the key witness did not know the accused prior to the incident, gave only a vague description, and failed to mention the accused in his initial statement despite allegedly...
Source-derived case information.
- Citation
- [2019] KEHC 9892 (KLR)
- Parties
- Applicant: Republic; Defendant: Jackson Ouma Onyango alias Chamigingo
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 26 of 2017
- Procedural Posture
- Criminal Case / Ruling on No Case to Answer
- Outcome
- acquittal
- Judges
- KW Kiarie
- Legal Topics
- Murder, Identification Evidence, Burden of Proof, Fair Trial Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Jackson Ouma Onyango alias Chamigingo
Defendant
Procedural Posture
Criminal Case / Ruling on No Case to Answer
Legal Issues
- 1 Whether the prosecution established a prima facie case to require the accused to be put on his defence.
- 2 Whether the identification evidence against the accused was sufficient and reliable.
- 3 Whether the accused's constitutional right to silence affects the possibility of conviction on the evidence adduced.
Ratio Decidendi
The court found that the prosecution failed to establish a prima facie case against the accused. The identification evidence was unreliable, as the key witness did not know the accused prior to the incident, gave only a vague description, and failed to mention the accused in his initial statement despite allegedly knowing him. The identification parade was compromised by inconsistencies in the witness's account. The police investigation was inadequate and relied on hearsay. Given these deficiencies, and considering the accused's constitutional right to remain silent, the court held that no reasonable tribunal could convict on the evidence presented. Consequently, the accused was acquitted...
Court Disposition
acquittal
Orders
- The accused is found not guilty and acquitted under section 306(1) of the Criminal Procedure Code.
- The accused is to be set at liberty unless otherwise lawfully held.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUSIA
CRIMINAL CASE NO. 26 OF 2017
REPUBLIC ................................................................................. PROSECUTOR
VERSUS
JACKSON OUMA ONYANGO ALIAS CHAMIGINGO………… ACCUSED
RULING
1. Jackson Ouma Onyango alias Chamigingois 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 11th day of August, 2017 atBlue Yorkarea, Mjini sub-location of Busia Township location in Busia County, murdered Kevin Wafula Wabwire.
3. The prosecution case is that the deceased and a boda-boda rider who was ferrying him were attacked by a mob who accused them to have participated in celebrating the Jubilee party win in elections. The deceased succumbed to the injuries. The accused was arrested as one of the attackers.
4. The test as to whether a prima facie case has been established to warrant an accused to be called upon to tender his defence was prescribed in the case ofRamanlal Trambaklal Bhatt vs. Republic (1957) E.A. 332. The Court of Appeal 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.
5. The prosecution, it would appear, charged the accused on the purported recognition evidence by Ibrahim Onyango (PW1). In his evidence in chief, he testified that the person whom he saw and registered his face was not known to him prior to the unfortunate incident. The only description he testified to was his shaving style. There was no evidence that this witness had given any description that would have formed the basis of an identification parade.
6. Chief Inspector Mosobin Ngeiywa (PW7) testified that when Ibrahim Onyango (PW1) identified the accused at the parade he conducted, the accused said that they knew each other for they were boda-boda operators. While testifying on the identification parade, PW1 said that he had been asked to identify a person he saw at the scene. He later changed and said that he was asked if he knew anybody. This, according to him was the reason he touched the accused.
7. When he (PW1) recorded his statement when the matter was still fresh, he never mentioned the accused who was well known to him. This witness also sustained injuries. If he had seen the accused, there was no reason why he could not have informed the police at the earliest opportunity.
8. The evidence Chief Inspector Ndege (PW6) was rife with inadmissible hearsay. He certainly failed to conduct thorough investigations in this case. He caused the accused to be charged without sufficient evidence.
9. Article 50 (2) (i) of the Constitution of Kenya provides:
Every accused person has the right to a fair trial, whichincludes the right—
(i) to remain silent, and not to testify during the proceedings
In the instant case, if the accused opts to exercise this Constitutional right, then no conviction can be founded on the evidence on record.
10. I accordingly make a finding of not guilty and acquit the accused under section 306 (1) of the Criminal Procedure Code. He is set at liberty unless if otherwise lawfully held.
DELIVERED and SIGNED at BUSIA this 21st day of February, 2019
KIARIE WAWERU KIARIE
JUDGE