https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10807

Republic v Otieno (Criminal Case E012 of 2025) [2026] KEHC 10807 (KLR) (17 July 2026) (Ruling) Neutral citation: [2026] KEHC 10807 (KLR) Republic of Kenya In the High Court at Siaya Criminal Case E012 of 2025 DK Kemei, J July 17, 2026 Between Republic Prosecution and James Ooko Otieno Accused Ruling 1.The accused herein James Ooko Otieno has been charged with an offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars are that on 2nd day of February, 2025 at around 2200 hours in Uloma Village, he murdered one Kennedy Owino. 2.The accused denied the charge and that the prosecution called five (5) witnesses in support of its case. 3.The prosecution’s case is that on the material date, the deceased herein arrived home only for the accused and his family to attack him. That the accused specifically used a spear to stab the deceased on the neck and that upon the arrival of the deceased’s brother Allan Ooko Ochieng (PW1), the assailants took off towards the road. The said PW1 assisted the injured deceased home from where he was rushed to Ukwala Sub County Hospital and then to Siaya County Referral Hospital but did not have money and thus returned the deceased home and that they later took him back to Siaya Referral hospital from where he was referred to Moi Teaching and Referral hospital but the deceased died on 7/3/2025. The witness (PW1) identified the recovered spear (Mfi-1) as well as the deceased’s clothes (Mfi-2A and B). The said witness further added that the accused is also a relative (cousin) but that they had disputes over cows and Napier grass and that the accused’s family had been grazing their cows on the deceased’s Napier grass. The witness further stated that accused’s wife and son Collins were armed with clubs while the accused had a panga and a spear. It was also the evidence of Lucas Ochieng Onyango (PW2) that upon being alerted by PW1, he rushed to the scene and found the deceased seriously injured and that they organized to rush him to hospital. The incident was reported at Ukwala police station and that an assault case was registered and that No. 110236 Pc Kennedy Oriema (PW3) investigated the matter and visited the complainant who was still undergoing medication but did record his statement wherein he had claimed that the accused had speared him on the neck. The witness recovered the assault weapon and some of the deceased’s clothes which were blood stained. The body of the deceased was later examined by a pathologist Dr Ted Timon who noted several injuries inter alia; fracture of middle finger on the proximal phalange; wound on the left side of the neck; lung collapse. The pathologist formed the opinion that the cause of death was sepsis secondary to thoracic empyema (pus in the lung spaces) due to penetrating neck injury. He produced the autopsy as exhibit 6. It was the evidence of No. 241336 IP Felix Kosgey (PW5) that he took over the matter that had been initiated as an assault but with the death of the complainant, it necessitated the institution of a murder case and that he received the lower court file plus the exhibits and later preferred a charge of murder against the accused. He produced the recovered weapon (spear) as exhibit 1 and the bloodstained clothes of the deceased as exhibits 2 A and 2B. 4.At the close of the prosecution’s case, learned counsels for the parties herein presented oral submissions on the issue of whether a prima facie case had been established by the prosecution so as to warrant the accused to be called upon to make a defence. 5.Mr Soita for the prosecution submitted inter alia; that all the elements of murder were proved by the prosecution to require the accused to make a defence; that the assault weapon was recovered and identified by the witnesses; that the prosecution has met the threshold set out in the case of Bhatt Vs R [1957] E A 332 and thus the accused should make a defence. 6.Mr Kadera for the accused submitted inter alia; that no prima facie case has been made out against the accused to require him to defend himself; that the evidence of all the witnesses were discredited during cross-examination; that the cause of death was not established as it is not clear if the deceased died due to negligence by the doctors in the various hospitals the deceased was attended to; that no forensic evidence was availed to connect the accused to the crime; that the purported green Jacket with bloodstains could not be visibly seen in court; that there was no direct evidence linking the accused to the crime and hence he should be acquitted of the charge. 7.I have considered the evidence of the prosecution at this stage of the proceedings as well as the oral submissions. I find the issue for determination is whether a prima facie case has been established by the prosecution so as to warrant the accused to be placed on his defence. A prima facie case is one where a reasonable tribunal, directing its mind to the law and evidence placed before it, can convict an accused person if no evidence is tendered by the defence to the contrary. What this means is that the evidence so far tendered must be sufficient to sustain a conviction against the accused were he to elect to remain silent in defence. See Bhat Vs R [1957] EA 332. 8.After analyzing the evidence and without delving deeper into a thorough examination of the evidence so as not to prejudice the defence case, it transpired that there was a dispute between the family of the deceased and the accused over the grazing of cows on some Napier grass. I find that the evidence of PW1, PW2 and PW3 placed the accused at the scene of the crime. That being the position, he must now offer an explanation as to how the deceased met his death. 9.In view of the foregoing observations, it is my finding that the prosecution has established a prima facie case against the accused herein to warrant him to be placed on his defence. Consequently, I find that the accused herein James Ooko Otieno, has a case to answer and is now called upon to elect to make his defence in accordance with the provisions of section 306(2) of the Criminal Procedure Code. DATED AND DELIVERED AT SIAYA THIS 17TH DAY OF JULY 2026D.KEMEIJUDGEIn the presence of :James Ooko Otieno................................AccusedKadera....................................................for AccusedSoita...........................................................for ProsecutionMaureene....................................................Court Assistant