[2022] KEHC 15339 (KLR)
The court found that the prosecution failed to establish a prima facie case against the accused for the offence of murder. The evidence presented was either hearsay or inadmissible, particularly the OB extract purporting to be a confession, which did not comply with the requirements of section 25A(1) of the Evidence...
Source-derived case information.
- Citation
- [2022] KEHC 15339 (KLR)
- Parties
- Applicant: Republic; Defendant: Oscar Otieno Osalo
- Court
- High Court
- Court Station
- High Court at Homa Bay
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 29 of 2020
- Procedural Posture
- Criminal Case / Ruling on No Case to Answer
- Outcome
- acquittal
- Judges
- KW Kiarie
- Legal Topics
- Murder, Prima Facie Case, Confession Evidence, Burden of Proof
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Oscar Otieno Osalo
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 for the offence of murder.
- 2 Whether the confession evidence was admissible under the Evidence Act.
- 3 Whether suspicion alone is sufficient to infer guilt in a murder trial.
Ratio Decidendi
The court found that the prosecution failed to establish a prima facie case against the accused for the offence of murder. The evidence presented was either hearsay or inadmissible, particularly the OB extract purporting to be a confession, which did not comply with the requirements of section 25A(1) of the Evidence Act. The court emphasized that suspicion, however strong, is insufficient to infer guilt and that the prosecution must prove its case beyond reasonable doubt. In the absence of direct or admissible evidence linking the accused to the death of the deceased, the court held that no reasonable tribunal could convict the accused if he chose to remain silent. Consequently, the...
Court Disposition
acquittal
Orders
- The accused is acquitted of the offence of murder under section 306(1) of the Criminal Procedure Code.
- The accused is set at liberty unless otherwise lawfully held.
Full Case Text
Judgment text and source record
24 paragraphs
Republic v Osalo (Criminal Case 29 of 2020) [2022] KEHC 15339 (KLR) (15 November 2022) (Ruling)
Neutral citation: [2022] KEHC 15339 (KLR)
Republic of Kenya
In the High Court at Homa Bay
Criminal Case 29 of 2020
KW Kiarie, J
November 15, 2022
Between
Republic
Prosecutor
and
Oscar Otieno Osalo
Accused
Ruling
1. Oscar Otieno Osalo is charged with an offence of murder contrary to section 203 as read with section 204 of the Penal Code.
2. The particulars of the offence are that on 16th day of July 2020, at Ndira village, in Ndhiwa Sub County within Homa Bay County, murdered Peter Osalo.
3. It was alleged that the deceased herein left their home in the company of the accused. When the two went missing, a report of missing persons was made to the police. Later the deceased was found dead and the accused was charged.
4. George Isaac Osalo (PW1) testified that his father informed him that the deceased and the accused left home together. This was hearsay. Even if the prosecution had adduced direct evidence to confirm the same, without any other evidence adduced to connect the accused to the death, this remains in the realm of suspicion. The Court of Appeal in the case of Sawe vs. Republic[2003] KLR 354, the Court of appeal held as follows:Suspicion, however strong, cannot provide the basis of inferring guilt which must be proved by evidence beyond reasonable doubt.
5. The other evidence that tended to connect the accused to the offence is that of the investigating officer. He produced an OB extract which is a confession. However, this is inadmissible. The law is very clear on how and by whom a confession is recorded. section 25A (1) of the Evidence Act provides as follows:A confession or any admission of a fact tending to the proof of guilt made by an accused person is not admissible and shall not be proved as against such person unless it is made in court before a judge, a magistrate or before a police officer (other than the investigating officer), being an officer not below the rank of Chief Inspector of Police, and a third party of the person’s choice.I find that the OB extract is an attempt to adduce evidence of confession through the back door. I accordingly disregard it.
6. Has the prosecution established a Prima facie case against the accused? Prima facie is defined in the Black’s Law Dictionary, 10th Edition as follows:Prima facie case. (1805) I. The establishment of a legally required rebuttable presumption. 2. A party's production of enough evidence to allow the fact-trier to infer the fact at issue and rule in the party's favor.
7. The Court of appeal in the case of Ramanlal Trambaklal Bhatt v. R [1957] E.A 332 at 334 and 335, defined prima facie case as follows:It may not be easy to define what is meant by a “prima facie case”, but at least it must mean one on which a reasonable tribunal, properly directing its mind to the law and the evidence could convict if no explanation is offered by the defence.
8. Article 50 (2) (i) of the Constitution of Kenya provides:
(2)Every accused person has the right to a fair trial, which includes the right—(i)i) to remain silent, and not to testify during the proceedings;In the instant case, if the accused opt to exercise his constitutional right hereinabove stated, I cannot convict him based on the evidence on record. This therefore means that the prosecution has not established a prima facie case against him. I accordingly acquit him of offence of murder under section 306 (1) of the Criminal Procedure Code. He is set at liberty unless if otherwise lawfully held.
DELIVERED AND SIGNED AT HOMA BAY THIS 15TH DAY OF NOVEMBER, 2022. KIARIE WAWERU KIARIEJUDGE