[2016] KEHC 3166 (KLR)
The court found that the prosecution failed to establish a prima facie case against the accused. The only witness called did not witness the murder and could not directly or circumstantially link the accused to the death of the deceased. The prosecution did not call the doctor who performed the post mortem to...
Source-derived case information.
- Citation
- [2016] KEHC 3166 (KLR)
- Parties
- Applicant: Republic; Defendant: Moulid Jaldesa; Defendant: Ibrahim Jaldesa
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 43 of 2012
- Procedural Posture
- Criminal Case / Judgment
- Outcome
- acquittal
- Judges
- RPV Wendoh
- Legal Topics
- Murder, Prima Facie Case, Burden of Proof, Malice Aforethought
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Moulid Jaldesa
Defendant
Ibrahim Jaldesa
Defendant
Procedural Posture
Criminal Case / Judgment
Legal Issues
- 1 Whether the prosecution established a prima facie case against the accused for the offence of murder.
- 2 Whether there was sufficient evidence linking the accused to the death of the deceased.
- 3 Whether malice aforethought was proved beyond reasonable doubt.
Ratio Decidendi
The court found that the prosecution failed to establish a prima facie case against the accused. The only witness called did not witness the murder and could not directly or circumstantially link the accused to the death of the deceased. The prosecution did not call the doctor who performed the post mortem to confirm the cause of death, and no evidence was presented to prove that the accused caused the death or acted with malice aforethought. As a result, the court held that the prosecution had not met the threshold required to call upon the accused to enter their defence. The accused were therefore acquitted under Section 306 of the Criminal Procedure Code.
Court Disposition
acquittal
Orders
- The accused are acquitted under Section 306 of the Criminal Procedure Code.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
CRIMINAL CASE NO. 43 OF 2012
REPUBLIC................................................................ PROSECUTOR
VERSUS
MOULID JALDESA ................................................. 1ST ACCUSED
IBRAHIM JALDESA ................................................. 2ND ACCUSED
JUDGMENT
Moulid Jaldesa and Ibrahim Jaldesa are jointly charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars of the charge state that on the night of 13/5/2012 at Kinna Area, Kinna Sub-Location, Garbatula District in Isiolo County, jointly with another not before the court, murdered Abdi Golicha Sora Hapana.
In support of their case, the prosecution called only one witness, Rashid Sora, a brother to the deceased. The accused were represented by Learned Counsel Ms. Thibaru, while the State was represented by Learned Counsel, Mr. Mulochi.
At the close of their case, the State is supposed to establish a prima facie case against the accused before he can be called upon to defend himself. A prima facie case has been defined as one where a tribunal, properly directing its mind to the law and facts, could convict if no explanation is offered by the defence. See Bhatt v Rep (1957) EA 322. I will therefore examine the evidence adduced before me to determine if such a case has been established.
Rashid Sora (PW1), who described himself as a brother of the deceased did not witness the murder. He recalled that he was asleep in his house on the night of 13/5/2011 about 3. 50 a.m. when his sister-in-law, Shinda Roba woke him up to inform him that his brother had been murdered by the sons of Golicha. PW1 named the sons of Golicha as the two accused though in his statement to the police, he never mentioned the two names.
The State Counsel informed the court that the other witnesses were unwilling to come to court. Despite the court issuing warrants of arrest for the witnesses, the police reported that the witnesses had disappeared. The court does note that it is not uncommon for such occurrence even in serious cases of this magnitude, for the people of this region - (isiolo, Garbatulla), declining to attend court on grounds that they have resolved the matter traditionally. Murder is not a dispute to be resolved traditionally. However, the court finds its hands tied when faced with such a situation.
In a case of murder, it is the duty of the prosecution to prove beyond any reasonable doubt:
1. The death of the deceased.
2. That the accused caused the death through unlawful act or omission.
3. That accused had malice aforethought.
For unknown reason, the prosecution did not call the Doctor who performed the post mortem though PW1 said he saw that indeed, the deceased had injuries to the forehead, and post mortem was done before burial, on the same day. The prosecution should have called the Doctor to confirm the cause of death.
No witness was called to tell the court who actually caused the death of the deceased. PW1 was not present. PW1 stated that Golicha had 9 sons and any of them could have caused the death. I find that there is no direct or circumstantial evidence linking the two accused with the death of the deceased. The two accused are only suspects.
Having failed to link accused to the death of deceased, the third ingredient of malice aforethought cannot therefore be proved. For the above reasons, I find that the prosecution has miserably failed to establish a prima facie case against accused for them to be called upon to enter their defence. They are hereby acquitted under Section 306 CPC.
DATED, SIGNED AND DELIVERED THIS 6TH DAY OF SEPTEMBER, 2016.
R.P.V. WENDOH
JUDGE
6/9/2016
PRESENT
Mr. Mulochi for State
Ms. Thibaru for Accused
Ibrahim/Peninah, Court Assistants
Both Present, Accused