[2019] KEHC 7556 (KLR)
The court found that the prosecution failed to establish a prima facie case against the accused persons. The evidence presented did not link the accused to the death of the deceased, and the cause of death was not established due to the absence of crucial witnesses, including the investigating officer and the doctor...
Source-derived case information.
- Citation
- [2019] KEHC 7556 (KLR)
- Parties
- Applicant: Republic; Defendant: Philemon Kipchumba Chelimo; Defendant: Martin Kipkemoi Komen
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 13 of 2013
- Procedural Posture
- Criminal Case / Ruling on No Case to Answer / Close of Prosecution Case
- Outcome
- acquittal under Section 210 of the Criminal Procedure Code
- Judges
- AM Githinji
- Legal Topics
- Murder, Prima Facie Case, Acquittal, Burden of Proof
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Philemon Kipchumba Chelimo
Defendant
Martin Kipkemoi Komen
Defendant
Procedural Posture
Criminal Case / Ruling on No Case to Answer / Close of Prosecution Case
Legal Issues
- 1 Whether the prosecution established a prima facie case against the accused persons for the offence of murder.
- 2 Whether the evidence adduced links the accused persons to the death of the deceased.
- 3 Whether the cause of death was established by the prosecution.
Ratio Decidendi
The court found that the prosecution failed to establish a prima facie case against the accused persons. The evidence presented did not link the accused to the death of the deceased, and the cause of death was not established due to the absence of crucial witnesses, including the investigating officer and the doctor who performed the post mortem. The prosecution prematurely closed its case without presenting sufficient evidence. As a result, the accused persons could not be called upon to answer the charge of murder, and the court acquitted them under Section 210 of the Criminal Procedure Code.
Court Disposition
acquittal under Section 210 of the Criminal Procedure Code
Orders
- The accused persons are acquitted of the offence of murder under Section 210 of the Criminal Procedure Code.
- Surety is discharged.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT ELDORET
CRIMINAL CASE NO. 13 OF 2013
REPUBLIC................................................................PROSECUTOR
VERSUS
PHILEMON KIPCHUMBA CHELIMO............1ST ACCUSED
MARTIN KIPKEMOI KOMEN.........................2ND ACCUSED
RULING
PHILEMON KIPCHUMBA CHELIMO and MARTIN KIPKEMOI KOMEN are charged with the offence of Murder, contrary to Section 203 as read with Section 204 of the Penal Code.
The particulars of this offence are that on the night of the 16th and 17th day of January, 2013 at Kamoi village in Kapsicha sub location within Elgeyo-Marakwet County, the accused persons murdered Paul Chelang’a.
The accused were charged on 21st January 2013 and by the time the prosecution closed their case on 11th December, 2018, they had only managed to call two witnesses who are brothers to the deceased. Their case is that the deceased’s wife (Mary) had left the deceased and gone back to her home at Kamoi village. The deceased followed her there. The following day they received a report from Mary that the deceased had died. They went to Mary’s home in Kamoi village and found that the deceased had been taken to Iten hospital mortuary. On 22nd January, 2013 they were called by the police to go to the mortuary to identify the body for post mortem. They did so. They identified the body which had burns on both sides of the lower part. Post mortem was conducted. There was blood in the brain. The accused persons who are Mary’s brothers, were arrested and charged. They had a cordial relationship with the deceased. The two witnesses could not tell who killed the deceased or why the accused persons were charged.
In determining whether the evidence establishes a prima facie case against the accused persons, I have considered that the evidence does not link them to the death of the deceased and the cause of death to the deceased was not established. Crucial witnesses in the case were not availed by the prosecution within the many opportunities accorded to them by the court to do so. The investigating officer and the Doctor who did the post mortem and filled the report were not called. Prosecution therefore prematurely closed their case before it was well rooted. The evidence does not connect the accused to the deceased’s death and they cannot therefore be blamed for it. A prima facie case is not established against them and are accordingly acquitted of the offence under Section 210 of the Criminal Procedure Code.
S. M GITHINJI
JUDGE
DATED, SIGNED and DELIVERED at ELDORET this 14th day of May, 2019.
In the presence of:-
Mr. Chemoyai for the 1st accused person also holding brief for Mrs Orina for the 2nd accused person
Ms Mokua for state /prosecutor
Ms Topister - Court Assistant
Court:
Surety is discharged.
SIGNED
S.M GITHINJI
JUDGE
14/5/2019