[2017] KEHC 8327 (KLR)
The court found that the prosecution failed to adduce any evidence placing the accused at the scene of the crime or establishing motive. The case was based entirely on circumstantial evidence, which did not meet the threshold for a prima facie case. As such, even if the accused remained silent, the prosecution's...
Source-derived case information.
- Citation
- [2017] KEHC 8327 (KLR)
- Parties
- Applicant: Republic; Defendant: Moses Otieno Ochieng; Defendant: Jane Adhiambo Ochieng
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 49 of 2011
- Procedural Posture
- Criminal Case / Ruling on No Case to Answer After Close of Prosecution Case
- Outcome
- acquittal
- Judges
- DAS Majanja
- Legal Topics
- Murder, Prima Facie Case, Circumstantial Evidence, Acquittal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Moses Otieno Ochieng
Defendant
Jane Adhiambo Ochieng
Defendant
Procedural Posture
Criminal Case / Ruling on No Case to Answer After Close of Prosecution Case
Legal Issues
- 1 Whether the prosecution established a prima facie case against the accused to warrant putting him on his defence.
- 2 Whether the evidence adduced placed the accused at the scene of the crime or established motive.
Ratio Decidendi
The court found that the prosecution failed to adduce any evidence placing the accused at the scene of the crime or establishing motive. The case was based entirely on circumstantial evidence, which did not meet the threshold for a prima facie case. As such, even if the accused remained silent, the prosecution's case would not sustain a conviction. Consequently, 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
- Moses Otieno Ochieng is acquitted under section 306(1) of the Criminal Procedure Code and set free unless otherwise lawfully held.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT AT KISUMU
CRIMINAL CASE NO. 49 OF 2011
BETWEEN
REPUBLIC .............................................................PROSECUTOR
AND
MOSES OTIENO OCHIENG ……………............ 1ST ACCUSED
JANE ADHIAMBO OCHIENG……………....….. 2ND ACCUSED
RULING
1. MOSES OTIENO OCHIENG and JANE ADHIAMBO OCHIENG are the son and wife respectively of the deceased GONZAGA OCHIENG. They are accused of murdering him on 31st July 2011 at Rangala Sub-location of Ugunja District within Siaya County. They pleaded not guilty. The 2nd accused passed away during the proceedings.
2. The prosecution called only 3 witnesses before closing its case. Charles Ouma Oloo (PW 1) testified that on 31st July 2011, the deceased’s brother, Omolo, came to see him at about 2. 00pm and informed him that the deceased’s house was quiet. He suspected that there was something wrong as the home was normally lively. They decided to proceed there and found the deceased’s grandchildren. They entered the deceased’s house and found him lying on his bed. PW 1 observed that he had bruises on the head with blood oozing. They left to inform one of the village elders who informed the Assistant Chief. Police officers arrived and collected the body. He told the court that he attended the post-mortem that was conducted at Siaya District Hospital.
3. One of the officers who arrived at the scene was the investigating officer, Sergeant Julius Kilonzo (PW 3). He recalled that he was on patrol within Rangala Sub-location with other officers when he was called by the Commanding Officer of Ugunja Police Station and instructed to proceed to the scene. When they arrived at the deceased’s home, they found villagers already there. The took the deceased’s body to Siaya District Hospital Mortuary. PW 3 recalled that there were no visible injuries on the body apart from scratches on the neck. PW 3 testified that he arrested the 2nd accused on 4th August 2011 when she returned to the deceased’s homestead after being away for some time. The 1st accused was arrested on 7th August 2011 by members of the public.
4. Dr Evans Ogoti (PW 2) produced the Post-mortem form on behalf of Dr Rapando who had conducted the post mortem on the deceased’s body. His key observation was that the deceased had a bruise at the back of the right shoulder and his neck was moving freely. Internal examination of the head revealed a blood clot behind the head above the ear and a fractured spinal column. He opined that the cause of death was respiratory depression due to a cervical spine fracture and possible spinal cord transection. In simple terms, the deceased appeared to have been strangled.
5. After the close of the prosecution case, I am required to decide whether there is sufficient evidence to put the accused on his defence. What amounts to a prima facie case has been set out is several cases among them among them Ramanlal Trambaklal Bhatt v R [1957]EA 332, Wibiro alias Musa v R [1960]EA 184and Anthony Njue Njeru v Republic NRB CA Crim. App. No. 77 of 2006 [2006]eKLR). It is that although a court is not required at this stage to establish that the prosecution has proved its case beyond reasonable doubt, it must nonetheless be satisfied that a reasonable tribunal directing its mind to the law and the evidence could convict if no explanation is offered by the defence.
6. The prosecution is weak tea. There is no evidence placing the accused at the scene of the incident on the day of the alleged murder. As the case is grounded on circumstantial evidence, no evidence of motive was led to implicate the accused. The accused cannot be called upon to answer such a case. Even if the accused elected to remain silent, the prosecution case would fail.
7. Under section 306(1) of the Criminal Procedure Code (Chapter 75 of Laws of Kenya), I am required to enter a verdict of not guilty which I hereby do againstMOSES OTIENO OCHIENG. He is therefore acquitted and set free unless otherwise lawfully held.
DATED and DELIVERED at KISUMU this 17th day of January 2017.
D.S. MAJANJA
JUDGE
Mr Adiso, Advocate for the accused.
Mr Sirtuy, Prosecution Counsel, instructed by the Office of the Director of Public Prosecutions, for the State.