[2013] KEHC 3547 (KLR)
The court found that the prosecution's case was based solely on circumstantial evidence, with no direct evidence linking any of the accused to the injuries that caused the deceased's death. The explanation provided by the accused, that a mob attacked the deceased while he was being escorted to the chief's office,...
Source-derived case information.
- Citation
- [2013] KEHC 3547 (KLR)
- Parties
- Applicant: Republic; Defendant: Kahindi Hare; Defendant: Kaingu Yaa; Defendant: Charo Kitsao Kenga; Defendant: Timothy Kitsao Kenga; Defendant: Furaha Elijah Yaa; Defendant: Anderson Shauri
- Court
- High Court
- Court Station
- High Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 18 of 2011
- Procedural Posture
- Criminal Case / Ruling on No Case to Answer at Close of Prosecution Case
- Outcome
- acquittal at no case to answer stage
- Judges
- CW Meoli
- Legal Topics
- Murder, Circumstantial Evidence, Prima Facie Case, Acquittal, Burden of Proof
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Kahindi Hare
Defendant
Kaingu Yaa
Defendant
Charo Kitsao Kenga
Defendant
Timothy Kitsao Kenga
Defendant
Furaha Elijah Yaa
Defendant
Anderson Shauri
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 persons for the offence of murder.
- 2 Whether there was sufficient evidence to require the accused to be put on their defence.
- 3 Whether circumstantial evidence adduced was adequate to link the accused to the death of the deceased.
Ratio Decidendi
The court found that the prosecution's case was based solely on circumstantial evidence, with no direct evidence linking any of the accused to the injuries that caused the deceased's death. The explanation provided by the accused, that a mob attacked the deceased while he was being escorted to the chief's office, was not contradicted by any evidence. The court held that the prosecution failed to establish a prima facie case against the accused persons, as the evidence did not exclude the possibility that persons other than the accused committed the offence. To require the accused to defend themselves would amount to filling gaps in the prosecution's case, contrary to the burden of proof...
Court Disposition
acquittal at no case to answer stage
Orders
- The accused persons are acquitted under Section 306 of the Criminal Procedure Code.
- They are set at liberty unless otherwise lawfully held.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
High Court at Malindi
Criminal Case 18 of 2011
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REPUBLIC …........................................PROSECUTOR
VERSUS
KAHINDI HARE
KAINGU YAA
CHARO KITSAO KENGA
TIMOTHY KITSAO KENGA
FURAHA ELIJAH YAA
ANDERSON SHAURI ...................................ACCUSED
RULING
1. The six accused persons were charged with Murder contrary to Section 203 as read with Section 204 of the Penal Code Chapter 63 of the Laws of Kenya. The particulars state that on the night of 26th and 27th May, 2011 at Boyani village, Nyari sublocation, Ganze district within Kilifi County jointly with others not before court they murdered Kaingu Karisa Njole alias Chongoli. 2. The prosecution evidence delivered through four witnesses is circumstantial, to the effect that the six accused persons arrested the deceased on the material night for possession of suspected stolen goods, namely, a mountain bike, two speakers and an amplifier (Exh. 1-3). 3. That the accused later appeared at the home of the area Assistant Chief Edward Charo Bokole (PW2) and reported that a mob had set upon the deceased on the way to the chief's office. When the entire group returned to the scene with police, they found nobody. The deceased's body lay on the ground in a thicket with several cuts on the head. It would appear that the 6th accused was a village elder and the others worked with him as some sort of vigilante group formed to suppress insecurity in the area. 4. At the close of prosecution case, there is no direct evidence to link any of the accused with the injuries that led to the death of the deceased. According to PW2, the accused reported that a mob had set upon the deceased as he was being escorted to the chief's office. Soon thereafter the deceased was found already dead. 5. There is no evidence to contradict the explanation given by the six accused to PW2. The fact that no people were found at the scene at the time does not exclude the possibility that indeed some people were there before and ran off after killing the deceased. The identity of the killers however, remains unknown.
6. The state of the prosecution evidence is such that to call upon the accused to defend themselves would amount to filling the prosecution gaps. I am not satisfied that a prima facie case has been established against the accused persons and I will acquit them accordingly at this stage.
They are set at liberty unless otherwise lawfully held.
Delivered and signed at Malindi this 7thday of May, 2013.
in the presence of Accused, Mr. Mayaka for them, Mr. Nyongesa for State, Court clerk – Evans.
C. W. Meoli
JUDGE
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