[2016] KEHC 8768 (KLR)
The court found that the prosecution failed to adduce any evidence connecting the accused to the death of the deceased or to establish the cause of death. Only two witnesses were called, and their testimony did not implicate the accused in any way. The prosecution's application for adjournment to call further...
Source-derived case information.
- Citation
- [2016] KEHC 8768 (KLR)
- Parties
- Applicant: Republic; Defendant: Kennedy Ochieng Bonyo alias Brother; Defendant: Owen Zadock alias Nyakwar Dani
- Court
- High Court
- Court Station
- High Court at Homa Bay
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 35 of 2012
- Procedural Posture
- Criminal Case / Ruling on Case to Answer at Close of Prosecution Case
- Outcome
- acquittal
- Judges
- DAS Majanja
- Legal Topics
- Murder Charge, Acquittal, Case to Answer, Evidentiary Requirements
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Kennedy Ochieng Bonyo alias Brother
Defendant
Owen Zadock alias Nyakwar Dani
Defendant
Procedural Posture
Criminal Case / Ruling on Case to Answer at Close of Prosecution Case
Legal Issues
- 1 Whether the prosecution established a prima facie case against the accused to require them to be put on their defence.
- 2 Whether there was any evidence connecting the accused to the death of the deceased.
Ratio Decidendi
The court found that the prosecution failed to adduce any evidence connecting the accused to the death of the deceased or to establish the cause of death. Only two witnesses were called, and their testimony did not implicate the accused in any way. The prosecution's application for adjournment to call further evidence was denied, and the case was closed. In the absence of any evidence linking the accused to the offence, the court held that there was no case to answer and acquitted the accused under section 306(1) of the Criminal Procedure Code.
Court Disposition
acquittal
Orders
- The accused, Kennedy Ochieng Bonyo alias Brother and Owen Zadock alias Nyakwar Dani, are acquitted and set free unless otherwise lawfully held.
- The sureties herein are discharged.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT AT HOMA BAY
CRIMINAL CASE NO. 35 OF 2012
BETWEEN
REPUBLIC………………………….PROSECUTOR
AND
KENNEDY OCHIENG BONYO alias BROTHER………...1ST ACCUSED
OWEN ZADOCK alias NYAKWAR DANI……………………………….2ND ACCUSED
RULING
The accused, KENNEDY OCHIENG BONYO alias BROTHER and OWEN ZADOCK alias NYAKWAR DANI (“the accused”) were charged with the murder of THOMAS MBOYA OKEYO which took place on 5th November 2011 at Central Karachuonyo Location, North Rachuonyo District within Homa Bay County contrary to section 203 as read with section 204 of the Penal Code (Chapter 63 of the Laws of Kenya).
The prosecution called only two witnesses; Michael Nyakato Odenyo (PW 1) and George Otieno Obade (PW 2). The collective effect of their testimony was that on 5th November 2011, the deceased was found dead after drinking at a chang’aa den and his body brought to PW 1’s home by unknown persons. There was no evidence connecting the accused to his death or even evidence of the cause of death.
I hasten to note that due to the delay in prosecuting the matter, I directed the prosecution to close its case after I rejected its application for adjournment.
In these circumstances, I find that the accused have no case to answer. I accordingly enter a verdict of not guilty againstKENNEDY OCHIENG BONYO alias BROTHER and OWEN ZADOCK alias NYAKWAR DANI under section 306(1) of the Criminal Procedure Code (Chapter 75 of Laws of Kenya). The accused are acquitted and set free unless otherwise lawfully held. The sureties herein are discharged.
DATED and DELIVERED at HOMA BAY this 24th day of May 2016
D.S. MAJANJA
JUDGE
Mr Ogutu instructed by Nyauke and Company Advocates for the 1st accused.
Mr Osoro instructed by Osoro and Company Advocates for the 2nd accused.
Ms Ongeti, Prosecution Counsel, instructed by the Office of the Director of Public Prosecutions, for the State.