[2016] KEHC 3654 (KLR)
The court found that the prosecution had not established a prima facie case against the 2nd accused, as none of the witnesses implicated him in the assault or in any act that could have caused the death of the deceased. The evidence against the 2nd accused was entirely lacking, and therefore, he was acquitted under...
Source-derived case information.
- Citation
- [2016] KEHC 3654 (KLR)
- Parties
- Applicant: Republic; Defendant: Mary Sammy; Defendant: Kimwele Nyoka
- Court
- High Court
- Court Station
- High Court at Kitui
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 20 of 2015
- Procedural Posture
- Criminal Case / Ruling at Close of Prosecution's Case
- Outcome
- 2nd accused acquitted; 1st accused to be put on her defence.
- Legal Topics
- Murder, Prima Facie Case, Acquittal, Criminal Procedure, Hearsay Evidence
- 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
Mary Sammy
Defendant
Kimwele Nyoka
Defendant
Procedural Posture
Criminal Case / Ruling at Close of Prosecution's Case
Legal Issues
- 1 Whether a prima facie case has been established against each accused person to require them to be put on their defence.
- 2 Whether the evidence adduced links the 2nd accused to the offence of murder.
- 3 Whether the 1st accused should be called upon to give an explanation under Section 306(2) of the Criminal Procedure Code.
Ratio Decidendi
The court found that the prosecution had not established a prima facie case against the 2nd accused, as none of the witnesses implicated him in the assault or in any act that could have caused the death of the deceased. The evidence against the 2nd accused was entirely lacking, and therefore, he was acquitted under Section 306(1) of the Criminal Procedure Code. In contrast, the evidence against the 1st accused, though based on statements made by the deceased to witnesses, was sufficient to require her to be put on her defence under Section 306(2) of the Criminal Procedure Code. The court relied on the principle that a prima facie case exists where a reasonable tribunal could convict if no...
Court Disposition
2nd accused acquitted; 1st accused to be put on her defence.
Orders
- The 2nd accused, Kimwele Nyoka, is acquitted under Section 306(1) of the Criminal Procedure Code.
- The 1st accused, Mary Sammy, is to be put on her defence under Section 306(2) of the Criminal Procedure Code.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KITUI
CRIMINAL CASE NO. 20 OF 2015
REPUBLIC...............................................PROSECUTOR
VERSUS
MARY SAMMY.........................................1ST ACCUSED
KIMWELE NYOKA..................................2ND ACCUSED
R U L I N G
1. Mary Sammyand Kimwele Nyoka,the 1st and 2nd Accused persons respectively, are charged with the offence of Murder contrary to Section 203as read with Section 204of the Penal Code (Cap. 63), Laws of Kenya.Particulars of the offence are that on the 25th day of April, 2011at about 11. 00 a.m.at Usenga Village, Kanzau Sub-location, Kisasi Locationof Kitui Districtwithin Kitui Countyjointly murdered Kinyamasyo Mweti(Deceased).
2. Fact of case are that on the 20th April, 2011,PW4, Munanie Jumaa daughter-in-law of the Deceased was at home doing her usual chores when she heard screams emanating from the kioskof the 1st Accused. She ran there and found the Deceased having fallen on the ground. The 1st Accused was counting money. The Deceased told her that the 1st Accused hit him with a stool. PW5 Musembi Mutungawent to the scene of the incident having been called by Sammy,the 1st Accused’s husband. She heard the Deceased state that he was assaulted by the 1st Accused who used a stool as a weapon.
3. At the close of the Prosecution’s case the fact of death was proved by evidence adduced by PW3, Dr. Patrick Mutukuwho performed a postmortem on the body of the Deceased. He formed the opinion that the cause of death was cardiopulmonary collapse due to asphyxia.
4. Witnesses who testified were not eye witnesses. The information they had as to what transpired was what they heard from the Deceased. None of the witnesses mentioned the 2nd Accused as having committed an act that could have caused the death of the Deceased. If put on his defence and he decides not to render any explanation as to what transpired, this court directing its mind properly would not convict (See Ramanlal Trambklal Bhatt vs. Republic (1957) EA 332).In a nutshell, no prima faciecase has been established requiring him to be put on his defence. Consequently, I return a verdict of not guilty in his respect. Accordingly, he is acquitted under Section 306(1)of the Criminal Procedure Code.
5. With regard to the 1st Accused, there is sufficient evidence requiring her to give an explanation as to what happened pursuant to the provisions of Section 306(2)of the Criminal Procedure Code.
6. It is so ordered.
Dated, Signed and Deliveredat Kitui this 17thday of August,2016.
L. N. MUTENDE