[2016] KEHC 1371 (KLR)
The court found that the prosecution had failed to call any witnesses or adduce any evidence against the accused, despite the passage of eight years since the commencement of the case. The accused had been in custody throughout, and the prosecution conceded that all witnesses had relocated and could not be traced....
Source-derived case information.
- Citation
- [2016] KEHC 1371 (KLR)
- Parties
- Respondent: Republic; Defendant: Philip Ndungu Kariuki
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 104 of 2008
- Procedural Posture
- Criminal Case / Ruling on No Case to Answer After Prosecution Closed Its Case Without Calling Witnesses
- Outcome
- acquittal
- Judges
- JV Juma
- Legal Topics
- Murder Charge, Manslaughter Plea Bargain, Mental Fitness to Plead, Failure to Prosecute, Acquittal Due to Lack of Evidence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Respondent
Philip Ndungu Kariuki
Defendant
Procedural Posture
Criminal Case / Ruling on No Case to Answer After Prosecution Closed Its Case Without Calling Witnesses
Legal Issues
- 1 Whether the prosecution established a prima facie case against the accused for the offence of murder.
- 2 Whether the accused should be acquitted due to the absence of prosecution witnesses and evidence.
Ratio Decidendi
The court found that the prosecution had failed to call any witnesses or adduce any evidence against the accused, despite the passage of eight years since the commencement of the case. The accused had been in custody throughout, and the prosecution conceded that all witnesses had relocated and could not be traced. In the absence of any evidence to support the charge of murder, the court held that no prima facie case had been established against the accused. Accordingly, the court entered a verdict of not guilty and acquitted the accused, ordering his immediate release unless otherwise lawfully held.
Court Disposition
acquittal
Orders
- The accused is acquitted of the charge of murder.
- The accused is to be set at liberty forthwith unless otherwise lawfully held.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
CRIMINAL CASE NO. 104 OF 2008
REPUBLIC .................................................................RESPONDENT
VERSUS
PHILIP NDUNGU KARIUKI .............................................ACCUSED
RULING
The accused herein PHILIP NDUNGU KARIUKI was charged with the offence of MURDER CONTRARY TO SECTION 203 as read with SECTION 204 of the PENAL CODE. The particulars of the charge were that:-
“On 10th day of October, 2008 at Nandarasi Village Ndunyu Njeru Location in Nyandarua South District within Central Province murdered THERESIA MAGIRI”.
Although the accused was first arraigned in court in October, 2008 this trial has never taken off for a variety of reasons which cannot be entirely blamed upon the prosecution.
Firstly the accused who was assessed and found to be suffering from Schizophrema a psychotic disorder was found unfit to plead and was placed under treatment at Mathari Hospital for a period of time. Given his mental state the trial could obviously not proceed.
In the meantime a plea – bargain agreement was being negotiated. This was eventually agreed upon and on 17/10/2012 the accused was charged with the lesser offence of MANSLAUGHTER CONTRARY TO SECTION 201 OF THE PENAL CODE. The accused pleaded guilty to that charge but when the facts were read out he changed his plea to one of ‘Not Guilty’.
The parties went back to the drawing board and the prosecution intimated that they would pursue the original charge of murder.
On several dated listed for hearing the matter did not proceed either due to unavailability of counsel or due to unavailability of witnesses.
On 27/9/2016 a full eight (8) years after the case commenced the court gave a last adjournment. On 16/10/2016 the prosecutor informed the court that the witnesses had relocated and could not be traced. Thus the prosecution eventually closed its case without the evidence of a single witness.
The accused has been in custody for 8 years. The witnesses cannot be traced and even if they were available much time has passed and memories are certain to have faded. No prima facie case has been made out. I enter a verdict of ‘Not Guilty’and I hereby acquit the accused of this charge of murder. The accused is to bet at liberty forthwith unless he is otherwise lawfully held.
Dated in Nakuru this 7th day of November, 2016.
Mr. Mongeri holding brief for Akango.
Maureen A. Odero
Judge
7/11/2016