[2018] KEHC 5466 (KLR)
The court found that although the fact of death was established, the prosecution failed to prove the cause of death as the doctor who conducted the post mortem was not called to testify. Furthermore, there was no evidence placing the accused at the scene of the crime or connecting him to the death of the deceased....
Source-derived case information.
- Citation
- [2018] KEHC 5466 (KLR)
- Parties
- Applicant: Republic; Defendant: Milton Bosire Oburi
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 101 of 2013
- Procedural Posture
- Criminal Case / Ruling on No Case to Answer at Close of Prosecution Case
- Outcome
- acquittal
- Judges
- DAS Majanja
- Legal Topics
- Murder, Standard of Proof, Acquittal, Criminal Procedure, Evidence, Burden of Proof
- 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
Milton Bosire Oburi
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 to require the accused to be put on his defence.
- 2 Whether the evidence adduced connected the accused to the death of the deceased.
- 3 Whether the cause of death was proved beyond reasonable doubt.
Ratio Decidendi
The court found that although the fact of death was established, the prosecution failed to prove the cause of death as the doctor who conducted the post mortem was not called to testify. Furthermore, there was no evidence placing the accused at the scene of the crime or connecting him to the death of the deceased. The mere presence of the accused and the deceased at the changaa den the previous evening was insufficient to establish a prima facie case. As a result, the court held that the prosecution had not made out a case to require the accused to be put on his defence and entered a verdict of not guilty under section 306 of the Criminal Procedure Code.
Court Disposition
acquittal
Orders
- The accused, Milton Bosire Oburi, is acquitted of the murder charge under section 306 of the Criminal Procedure Code.
- The accused is to be set free unless otherwise lawfully held.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KISII
CRIMINAL CASE NO. 101 OF 2013
REPUBLIC...............................................PROSECUTOR
VERSUS
MILTON BOSIRE OBURI.............................ACCUSED
RULING
1. The accused, MILTON BOSIRE OBURI, was charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code (Chapter 63 of the Laws of Kenya). The court was informed on 24th September 2013 that he had murdered TABERIOUS OKEMWA OMBUNA on 21st September 2013 at Upbrige Village, Kisii Central District within Kisii County with others not before the court.
2. The prosecution case was that on 22nd September 2013 at about 5. 45am, the deceased was found lying at the main entrance of his homestead. His wife Beatrice Ombuna Onserio (PW 1) testified to this fact. According to Truscilla Nyabeta Mosoko (PW 2), the accused came to her home, which was a changaa, den on the evening of 21st September 2013. He appeared drunk and had a panga. The deceased had also come earlier to take changaa. She however left early to go and sleep. She only heard later that the deceased had passed away. Samwel Onserio Ratemo (PW 3) was also present at PW 2’s place and confirmed that deceased was present when the accused, who appeared drunk, came with a panga. The prosecution did not call any further witnesses as I declined the prosecution’s application for adjournment when the matter came up for hearing today, 17th July 2018. The prosecution then closed its case.
3. Although the fact of death was established, the cause of death was not proved as the prosecution did not call the doctor who conducted the post mortem. Likewise there was no evidence putting the accused at the scene where the deceased died or even connecting him to the death. That the accused and the deceased were at PW 2’s changaa den the previous evening prior to his death is insufficient to put the accused on his defence.
4. I enter a verdict of not guilty under section 306 of the criminal Procedure Code against the accused. Consequently, the accused MILTON BOSIRE OBURI, is acquitted of the murder of TABERIOUS OKEMWA. He is set free unless otherwise lawfully held.
Dated and delivered at Kisii this 17th July 2018.
D.S MAJANJA
Judge
Mr. Otieno, Senior Prosecution Counsel, instructed by Office of Director of Prosecutions
Mr. Kaburi, Advocate for the Accused