[2015] KEHC 2063 (KLR)
The court found that the prosecution failed to establish a prima facie case against the accused persons. The identification evidence was inconsistent and unreliable, as the witnesses gave conflicting accounts regarding the lighting conditions at the scene. The court noted that the evidence did not sufficiently...
Source-derived case information.
- Citation
- [2015] KEHC 2063 (KLR)
- Parties
- Applicant: Republic; Defendant: Mwendwa Kavinya; Defendant: Ngula Mulevu; Defendant: Mutinda Malusi; Defendant: Musyoka Malusi
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 62 of 2007
- Procedural Posture
- Criminal Case / Ruling on No Case to Answer
- Outcome
- acquittal
- Judges
- BT Jaden
- Legal Topics
- Murder, Identification Evidence, Circumstantial Evidence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Mwendwa Kavinya
Defendant
Ngula Mulevu
Defendant
Mutinda Malusi
Defendant
Musyoka Malusi
Defendant
Procedural Posture
Criminal Case / Ruling on No Case to Answer
Legal Issues
- 1 Whether the prosecution established a prima facie case against the accused persons for the offence of murder.
- 2 Whether the identification evidence was sufficient and free from the possibility of error.
Ratio Decidendi
The court found that the prosecution failed to establish a prima facie case against the accused persons. The identification evidence was inconsistent and unreliable, as the witnesses gave conflicting accounts regarding the lighting conditions at the scene. The court noted that the evidence did not sufficiently demonstrate how the accused were identified at night, and the contradictions among the witnesses further weakened the prosecution's case. In the absence of credible and reliable identification evidence, the court held that it would be unsafe to put the accused on their defence. Accordingly, the accused persons were acquitted under Section 306(1) of the Criminal Procedure Code.
Court Disposition
acquittal
Orders
- The accused persons are acquitted under Section 306(1) of the Criminal Procedure Code.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
CRIMINAL CASE NO. 62 OF 2007
REPUBLIC.................................................PROSECUTOR
VERSUS
MWENDWA KAVINYA..............................1ST ACCUSED
NGULA MULEVU.....................................2ND ACCUSED
MUTINDA MALUSI...................................3RD ACCUSED
MUSYOKA MALUSI.................................4TH ACCUSED
RULING
1. The 1st accused Mwendwa Kavinya, 2nd accused Ngula Mulevu, Mutinda Malusi and 4th accused Musyoka Malusi are charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code.
2. The particulars of offence are that on the night of 25th and 26th October 2007 at Ngomano village, Itoleka Sub-Location, Itoleka Location, Kitui Central Division in Kitui District within Eastern Province jointly murdered Katindi Mwaka.
3. The prosecution case was that on the material night, PW1 Julius Mbiti Masila, PW2 Jacob Mwanzia, PW3 Mumo Mbiti and PW5 Jackson Mutisya saw the deceased under the arrest of the accused persons. That the deceased who had some injuries was being accused of having stolen some sukuma wiki (kales) and was begging for forgiveness. The following day the naked body of the deceased was found at the riverside of a nearby river. A report was made at the Mutomo Police Station. The body was removed to Kitui Hospital Mortuary. After investigations the accused persons were arrested and charged with the offence herein.
4. At the close of the prosecution case, the defence counsel submitted on a no case to answer. He pointed out that there was lack of proper identification of the accused persons on the material night. It was argued that the circumstantial evidence on record is of the weakest kind.
5. The learned counsel for the State submitted on the sufficiency of the prosecution evidence.
6. I have considered the said rival submissions and the evidence on record.
7. The offence took place at night. The evidence of PW1 was that of recognition but does not reveal how he was able to see the culprits at night. It does not reflect any other method of identification. Although the evidence of PW2 and PW3 is that of recognition, the two witnesses contradicted each other. According to PW2, it was a dark night but he had a torch that enabled him to see. According to PW3, it was a cloudy night but there was bright moonlight and he could see. According to PW5, it was drizzling but he could see by use of moonlight. The total sum of the evidence of the aforestated witnesses is that it creates doubts on whether there was sufficient light for identification without any possibility of error.
8. In the premises, the prosecution has failed to establish a prima faciecase. Consequently the accused persons are acquitted under Section 306(1) of the Criminal Procedure Code.
………………………………………
B. THURANIRA JADEN
Dated and delivered at Kitui this 24th day of September, 2015
………………………………………
B. THURANIRA JADEN
JUDGE