[2019] KEHC 2346 (KLR)
The court found that the prosecution failed to adduce any evidence demonstrating that the 2nd, 3rd and 4th accused persons received, relieved, comforted, or assisted the 1st accused to escape punishment after the commission of murder. The only evidence against them was the similarity of their statements during...
Source-derived case information.
- Citation
- [2019] KEHC 2346 (KLR)
- Parties
- Applicant: Republic; Defendant: Richard Onyango Otito; Defendant: Jones Makota; Defendant: Fredrick Hosea; Defendant: Rose Akinyi
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 07 of 2017
- Procedural Posture
- Criminal Case / Ruling on No Case to Answer for 2nd, 3rd and 4th Accused
- Outcome
- acquittal of 2nd, 3rd and 4th accused for being accessories after the fact to murder
- Judges
- TW Cherere
- Legal Topics
- Murder, Accessory After the Fact, Elements of Offence, Burden of Proof
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Richard Onyango Otito
Defendant
Jones Makota
Defendant
Fredrick Hosea
Defendant
Rose Akinyi
Defendant
Procedural Posture
Criminal Case / Ruling on No Case to Answer for 2nd, 3rd and 4th Accused
Legal Issues
- 1 Whether the 2nd, 3rd and 4th accused persons assisted the 1st accused to escape punishment after the commission of murder.
- 2 Whether the prosecution adduced sufficient evidence to establish the offence of being an accessory after the fact to murder against the 2nd, 3rd and 4th accused.
Ratio Decidendi
The court found that the prosecution failed to adduce any evidence demonstrating that the 2nd, 3rd and 4th accused persons received, relieved, comforted, or assisted the 1st accused to escape punishment after the commission of murder. The only evidence against them was the similarity of their statements during interrogation, which is insufficient to establish the offence of being an accessory after the fact. Consequently, the court held that there was no case to answer against the 2nd, 3rd and 4th accused persons and acquitted them under Section 222 of the Penal Code.
Court Disposition
acquittal of 2nd, 3rd and 4th accused for being accessories after the fact to murder
Orders
- The 2nd, 3rd and 4th accused persons are found not guilty of being accessories after the fact to murder contrary to Section 222 of the Penal Code.
- The 2nd, 3rd and 4th accused persons are to be set at liberty unless otherwise lawfully held.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
(CORAM: CHERERE-J_
CRIMINAL CASE (MURDER) NO. 07 OF 2017
BETWEEN
REPUBLIC ............................................................................................PROSECUTOR
AND
RICHARD ONYANGO OTITO.............................................................1ST ACCUSED
JONES MAKOTA.................................................................................2ND ACCUSED
FREDRICK HOSEA..............................................................................3RDACCUSED
ROSE AKINYI…...................................................................................4TH ACCUSED
RULING
1. RICHARD ONYANGO OTITO, Accused 1 herein is charged with the offence of Murder Contrary to Section 203 as read with Section 204 of the Penal Code.
2. JONES MAKOTA, FREDRICK HOSEAand ROSE AKINYI who are the 2nd, 3rd and 4th accused persons respectively are charged with being accessories after the fact to murder Contrary to Section 222 of the Penal Code. The particulars of the charge are that:
Well knowing that RICHARD ONYANGO OTITO did on 06th February, 2017 in Anyiko Sub-Location in Gem Sub-County within Siaya County murder ERICK OUMA ODONGO did on 06th February, 2017 and days thereafter assist the said RICHARD ONYANGO OTITO to escape punishment
3. In support of its case, the state called a total of fourteen (14) witnesses. From the evidence on record, only the evidence by PW2 JAMESTONE OKATO and PW13 IP FRANCIS WAMBUA, the investigating officer touch on the 2nd, 3rd and 4th Accused persons.
4. From the totality of the evidence by the said two witnesses, it is apparent that the 2nd, 3rd and 4th Accused persons were charged only for the reason that the statements they recorded during interrogation were similar.
5. Black’s Law Dictionary Tenth Edition by Byryan A. Garner defines accessory after the fact as:
A person who, knowing a felony to have been committed by another, receives, relieves, comforts or assists the felon, in order to enable him to escape from punishment, or the like.
6. No evidence has been tendered to demonstrate that the 2nd, 3rd and 4th Accused persons either received, relieved, comforted or assisted anyone and more so the 1st accused in order to enable him to escape from punishment.
Disposition
7. As a result, I find the 2nd, 3rd and 4th Accused persons found NOT GUILTY of the offence of being accessories after the fact to murder Contrary to Section 222 of the Penal Code and I order that they be set at liberty unless otherwise lawfully held. It is so ordered.
DATED, DELIVERED AND SIGNED THIS 07thDAY OF November2019
T. W. CHERERE
JUDGE
Read in open court in the presence of-
Court Assistant - Amondi
Accused 1 - Present
Accused 2 - Present
Accused 3 - N/A
Accused 4 - Present
For Accused 1 - Ms Onsongo/Mr Yogo
For Accused 2, 3 and 4 - Ms Onsongo/Mr Otieno