[2022] KEHC 11458 (KLR)
The court found that the prosecution failed to establish a prima facie case against the accused. There was no eyewitness testimony or direct evidence linking the accused to the murder. The key witnesses, who were said to be eye witnesses, failed to attend court, and the father of the accused and deceased, who was...
Source-derived case information.
- Citation
- [2022] KEHC 11458 (KLR)
- Parties
- Applicant: Republic; Defendant: Chirungu Sombo Kombo
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 14 of 2016
- Procedural Posture
- Criminal Case / Ruling on No Case to Answer
- Outcome
- acquittal for no case to answer
- Judges
- A. Ong’injo
- Legal Topics
- Murder, Standard of Proof, No Case to Answer, Evidence Evaluation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Chirungu Sombo Kombo
Defendant
Procedural Posture
Criminal Case / Ruling on No Case to Answer
Legal Issues
- 1 Whether the prosecution established a prima facie case to warrant the accused being placed on his defence for the offence of murder.
- 2 Whether the available evidence linked the accused to the murder of the deceased beyond reasonable suspicion.
Ratio Decidendi
The court found that the prosecution failed to establish a prima facie case against the accused. There was no eyewitness testimony or direct evidence linking the accused to the murder. The key witnesses, who were said to be eye witnesses, failed to attend court, and the father of the accused and deceased, who was present at the scene, did not witness the accused committing the offence and denounced his earlier statement. The court held that suspicion alone, however strong, is not sufficient to place the accused on his defence. Consequently, the accused was acquitted under section 210 of the Criminal Procedure Code for no case to answer.
Court Disposition
acquittal for no case to answer
Orders
- The accused is acquitted under section 210 of the Criminal Procedure Code.
- The accused shall be set at liberty unless otherwise lawfully held.
Full Case Text
Judgment text and source record
25 paragraphs
Republic v Kombo (Criminal Case 14 of 2016) [2022] KEHC 11458 (KLR) (2 June 2022) (Ruling)
Neutral citation: [2022] KEHC 11458 (KLR)
Republic of Kenya
In the High Court at Mombasa
Criminal Case 14 of 2016
A. Ong’injo, J
June 2, 2022
Between
Republic
Prosecutor
and
Chirungu Sombo Kombo
Accused
Ruling
1. The accused Chirungu Sombo Kombo is charged with the offence of murder Contrary to section 203 as read with section 204 of the PenalCode.
2. Particulars are that Chiringu Sombo Kombo on March 14, 2016 at Milingo Village, Vigurungani location within Kwale County murdered Mchombo Sombo.
3. The prosecution closed its case after failing to avail witnesses who were said to brothers of the accused and the deceased and who were incorporative and had relocated from home to avoid being bonded to attend court as witnesses.
4. PW 1 – Dr. Ahmed Mukuche Juma Hassan produced postmortem report prepared by Dr. Edwin Gathendu at Kinango Sub-County Hospital mortuary on March 13, 2016 in which he was of the opinion that cause of death was severe head injury with primary and secondary brain injury due to trauma by a sharp object.
5. PW 2 the father of the deceased and the accused testified that he had left his sons home where visitors had come and that at night he heard noise and when he went to where noise came from he found it was at his sons home and a child he found at the home told him the deceased had been cut. When he followed the deceased to the hospital he didn’t find anyone. When he went to the police station he learnt his son had died. He said he didn’t see accused cut the deceased.
6. PW 3 former OCS Vigurungani Police Station testified that he received report of a person who had been cut at 11. 00pm. He advised that he should be rushed to hospital but when he followed he found the person had succumbed to the injuries. He said the deceased had cuts on the head, legs and hands.The body was transferred to the Kinango Hospital mortuary where postmortem was done after photographs taken.
7. PW 3 was informed the assailant was the deceased persons brother the accused herein but he had disappeared. That the accused was later apprehended by members of public and escorted to the police station and he was charged.
8. From the evidence of the 3 prosecution witnesses it is apparent that there is no eye witness to the murder of the deceased as the father of the deceased – PW 2 denounced the statement that he wrote at the police station and the daughter of the deceased whom PW 2 said was being married and who was the reason visitors came to their home didn’t record a statement.
9. The sons of PW 2 and brothers of the deceased and the accused who recorded statements as eye witnesses have also failed to attend court since 2016 and as much as there is strong suspicious accused caused the death of his brother he cannot be placed on defence as there is no evidence to warrant him being placed on defence.
10. Accused person is therefore acquitted under section 210 Criminal Procedure Code for no case to answer.
DATED, SIGNED AND DELIVERED IN OPEN COURT THIS 02TH DAY OF JUNE 2022HON. LADY JUSTICE A. ONG’INJOJUDGEIn the presence of:-Ogwel- Court AssistantMs. Kambaga for StateMr. Otieno for the AccusedAccused – Present in personHON. LADY JUSTICE A. ONG’INJOJUDGE