[2016] KEHC 6418 (KLR)
Although there was direct and corroborated eyewitness testimony identifying the accused as the person who stabbed the deceased, the prosecution failed to produce the postmortem report through its author or otherwise properly tender it as evidence. This omission meant that the cause of death was not medically...
Source-derived case information.
- Citation
- [2016] KEHC 6418 (KLR)
- Parties
- Applicant: Republic; Defendant: Joash Omol Juma
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Murder Case 2 of 2007
- Procedural Posture
- Murder Trial / Judgment
- Outcome
- acquittal
- Legal Topics
- Murder, Mens Rea, Identification of Accused, Medical Evidence, Burden of Proof
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Joash Omol Juma
Defendant
Procedural Posture
Murder Trial / Judgment
Legal Issues
- 1 Whether the accused caused the death of the deceased by an unlawful act.
- 2 Whether the prosecution proved the element of malice aforethought (mens rea).
- 3 Whether the absence of a properly produced postmortem report is fatal to the prosecution's case.
Ratio Decidendi
Although there was direct and corroborated eyewitness testimony identifying the accused as the person who stabbed the deceased, the prosecution failed to produce the postmortem report through its author or otherwise properly tender it as evidence. This omission meant that the cause of death was not medically established as required by law. The court found that, in the absence of such medical evidence, it could not conclusively link the accused's actions to the death of the deceased. The prosecution's failure to utilize the opportunity granted by the court to call the author of the postmortem report was a critical procedural lapse. As a result, the prosecution did not discharge its burden...
Court Disposition
acquittal
Orders
- The accused is set free unless lawfully held for another cause.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
MURDER 2 Of 2007
REPUBLIC ….................................................PROSECUTOR
VERSUS
JOASH OMAL JUMA …............................................ACCUSED
J U D G M E N T
1, The accused JOASH OMOL JUMA was charged with the offence of murder contrary to Section 203 as read with 204 of the Penal Code. The particulars of the offence were that on the night of 19th October 2004 at Ayucha Sub-location in Nyando District, Nyanza Province murdered MARK OKOTH ONDULO.
2, The prosecution called several witnesses to prove its case The following 3 witnesses namely Roselyn Obala Okoth, PW1, Pamela Adhiambo Okoth PW2 and Eunice Akinyi Okoth PW4 were deceased's wives who testified that on the material day they were together with the deceased at the farm having harvested sugarcane and were awaiting a tractor to collect the same. They testified that the accused came to the farm and confronted PW1 by telling her that he heard she wanted to talk to him. He also asked the deceased the same question. Immediately he pulled a knife from his clothes and stabbed the deceased 3 times. PW1 tried to intervene but she was also stabbed. The accused then took off.
3. PW2 WASHINGTON ODIYOreceived information that the deceased had been killed by the accused. He went to the scene where he ascertained. He also went to NyanzaGeneral Hospital mortuary to identify the body for post mortem purposes.
4. PW5 STEVEN ODHIAMBO GOMBEis the chief of Awasi Location. He went to the scene after the murder. He also notified the police who came and took the body.
5. PW6 P.C. JOSEPH KOSKEI together with the deceased's wives arrested the accused on 16. 12. 2006 at Awasi Market.
6. PW7 DR. MATILDA WENDO testified on behalf of Dr. Dickson Michana who had filled the postmortem report. He said that the conclusion of the cause of death was penetrating soft injury. The body had stab wound on the chest, abdomen and left forearm. The said witness did mark the postmortem report as MFI.
7. PW8 P.C. EDWIN OJOROGOTI was the investigation officer. He testified that the accused reported on 20. 10. 2004 at Boya Police Station that he had been assaulted by the deceased after a fight. He contacted the OCS Awasi Police station who confirmed that the accused was wanted at the said station. He arrested him and thereafter handed him over to the Awasi Police station.
8. When put on his defence the accused gave unsworn evidence. He said that on the material days they were harvesting sugarcane at the deceased's farm. Thereafter the deceased gave them alcohol to drink. From there he did not know what happened till the following day on 20th when he found himself at the police station.
9. He further said that he was incarcerated for 14 days but later released. Later on 17/12/2006 he wanted to build a house but was arrested and later charged for the offence of Murder.
10. I have read the parties written submissions together with the entire proceedings herein. For the offence of murder to be establishedmens rea has to be proved. It must be proved that the accused had the intention to harm the deceased. In this case the evidence of PW1, PW2 and PW4, corroborated each other. All the three knew the accused as he was their cousin. They saw him approach the deceased and pulled the knife from his pocket or clothing and stabbed him severally. In an attempt to rescue the deceased PW1 was equally injured. The offence took place at between 5 p.m. and 6 p.m. The question of identification was equally proved. There was nothing to suggest that the witnesses were unable to identify the assailant.
Having found that indeed the accused assaulted the deceased which apparently caused his death, there was no medical evidence to
suggest the above findings! From the record although Dr, Matilda Wendo PW7 marked the post-mortem report the author of the same Dr. Dickson Michana was not called to produce the same. Its trite law that for the offence of murder to be established the postmortem report ought to be produced. Infact this court vide its ruling of 17th November 2014 re-opened the case afresh under the provisions of Section 150 of the Criminal Procedure Code and Article 159 of the constitution so as to allow the prosecution time to call the said doctor. The prosecution for the reasons best known to it failed to seize the opportunity. That opportunity was well seized as expected by the defence.
11. Although, therefore there is factual evidence that its the accused who assaulted the deceased based on the evidence on record, medically there is no such sufficient evidence. There is nothing to verify the cause of deceased's death.
12. In the premises the case against the accused herein ought to fail. Clearly, the prosecution will forever take the blame for its failure to produce the postmortem report despite the court suo motogranting it a window of opportunity.
The accused is therefore set free unless lawfully held.
Dated, signed and delivered this 8th day of March 2016.
H. K. CHEMITEI
J U D G E
In the presence of
…........................... for State
…...........................fpr accused
…...........................Court clerk/interpreter