[2023] KEHC 27051 (KLR)
The court found that the prosecution had established a prima facie case against the accused persons. The discrepancies in the names on the post-mortem form were explained and authenticated by the investigating officer and the medical officer who conducted the post-mortem. The court was satisfied that the body...
Source-derived case information.
- Citation
- [2023] KEHC 27051 (KLR)
- Parties
- Applicant: Republic; Defendant: Francis Hamisi Makali; Defendant: Emmanuel Andera Sikuku
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Criminal Case E008 of 2023
- Procedural Posture
- Criminal Case / Ruling on Case to Answer
- Outcome
- accused persons found to have a case to answer and put on their defence
- Judges
- WM Musyoka
- Legal Topics
- Prima Facie Case, Identity of Deceased, Post Mortem Evidence, Case to Answer
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Republic
Applicant
Francis Hamisi Makali
Defendant
Emmanuel Andera Sikuku
Defendant
Procedural Posture
Criminal Case / Ruling on Case to Answer
Legal Issues
- 1 Whether the prosecution established a prima facie case against the accused persons to warrant them being put on their defence.
- 2 Whether discrepancies in the names on the post-mortem form undermine the proof of death or identity of the deceased.
Ratio Decidendi
The court found that the prosecution had established a prima facie case against the accused persons. The discrepancies in the names on the post-mortem form were explained and authenticated by the investigating officer and the medical officer who conducted the post-mortem. The court was satisfied that the body examined was that of the deceased, Patrick Otieno Makali, and that his death was not in dispute, having occurred in broad daylight in the presence of witnesses. The authenticated alterations did not undermine the prosecution's case, and no objection was raised to the production of the post-mortem form. Therefore, the accused persons were found to have a case to answer and were put on...
Court Disposition
accused persons found to have a case to answer and put on their defence
Orders
- The accused persons are found to have a case to answer.
- The accused persons are put on their defence.
Full Case Text
Judgment text and source record
24 paragraphs
Republic v Makali & another (Criminal Case E008 of 2023) [2023] KEHC 27051 (KLR) (20 December 2023) (Ruling)
Neutral citation: [2023] KEHC 27051 (KLR)
Republic of Kenya
In the High Court at Busia
Criminal Case E008 of 2023
WM Musyoka, J
December 20, 2023
Between
Republic
Prosecution
and
Francis Hamisi Makali
1st Accused
Emmanuel Andera Sikuku
2nd Accused
Ruling
1. This is a ruling as to whether the Republic has established a prima facie case against the accused persons, to warrant them making statements in defence.
2. I have seen the written submissions by the accused, dated November 7, 2023. They turn principally on the names that appear in the post-mortem form, Patrick Otieno Andera Makale and Patrick Otieno Makali, and they appear to suggest that there was inadequate identity of the person whose body was subjected to the autopsy, and, perhaps, there was inadequate proof that the deceased had died.
3. The deceased person, according to the charge sheet, is Patrick Otieno Makali. The part of the P3 Form filled by the police bears the name of Patrick Otieno Andera Makale, as the individual on whose body the police sought to have the post-mortem conducted. The initial name was indicated as Emmanuel Andera Sikuku, but Emmanuel and Sikuku were subsequently crossed out, and replaced with Patrick Otieno Makale, but Andera was not crossed out. The cancellations are countersigned.
4. Emmanuel Andera Sikuku is the 2nd accused herein, and his name appears to have had been written on the form by error, which was subsequently corrected, by the investigating officer, and the proper name inserted. The alterations have been countersigned to authenticate the changes.
5. The other alteration is at page 2 of the P3 Form. Above the name crossed out appears the name Patrick Otieno Makale. The alteration is countersigned by Dr. Nabuya, the medical officer who conducted the post-mortem. This section of the form is filled by the medical officer, and he signed the form at the end, at page 3. The alteration is “owned” by Dr. Nabuya, and it confirms that the body that he conducted post-mortem on was that of Patrick Otieno Makale.
6. It is not disputed that the person who died was Patrick Otieno Makali. His killing happened in broad daylight, in the presence of witnesses, who saw as he breathed his last. The fact of his death, and the circumstances of the death, are well documented, and are not in doubt. As the alterations in the form have been authenticated, and as no objection to the production of the form was raised, the same cannot found basis for a finding that a prima facie case was not established.
7. Globally, looking at the evidence tendered by the Republic, in its totality, it is my finding that the prosecution has established a prima facie case against the accused persons herein, to support a finding that they have a case to answer, and to warrant their being put on their defence. I find that they have a case to answer, and I, accordingly, put them on their defence.
RULING DELIVERED, DATED AND SIGNED IN OPEN COURT AT BUSIA THIS…….......20TH..............…DAY OF……….........DECEMBER.............……. 2023WM MUSYOKAJUDGEMr. Arthur Etyang, Court Assistant.AdvocatesMs. Chepkonga, instructed by the Director of Public Prosecutions, for the Republic.Mr. Were, Advocate for the accused persons.criminal case no. e008 of 2023 – ruling 2