[2014] KEHC 2834 (KLR)
The court found that the prosecution failed to establish a prima facie case against the accused. The evidence presented was insufficient, as no direct evidence linked the accused to the act of throwing the deceased into the river. The alleged eye witness did not testify, and other key witnesses, such as the...
Source-derived case information.
- Citation
- [2014] KEHC 2834 (KLR)
- Parties
- Applicant: Republic; Defendant: S M
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 50 of 2008
- Procedural Posture
- Criminal Case / Ruling on Whether to Place Accused on Defence After Prosecution Case
- Outcome
- acquittal
- Judges
- SJ Chitembwe
- Legal Topics
- Murder Charge, Prima Facie Case, Hearsay Evidence, Acquittal, Burden of Proof
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
S M
Defendant
Procedural Posture
Criminal Case / Ruling on Whether to Place Accused on Defence After Prosecution Case
Legal Issues
- 1 Whether the prosecution established a prima facie case to require the accused to be placed on his defence.
- 2 Whether the evidence presented was sufficient to link the accused to the offence of murder.
Ratio Decidendi
The court found that the prosecution failed to establish a prima facie case against the accused. The evidence presented was insufficient, as no direct evidence linked the accused to the act of throwing the deceased into the river. The alleged eye witness did not testify, and other key witnesses, such as the assistant chief and members of the public who arrested the accused, were not called. The only evidence before the court was hearsay from the investigating officer, which was not corroborated. As a result, the court held that there was no case for the accused to answer and acquitted him under section 306 of the Criminal Procedure Code.
Court Disposition
acquittal
Orders
- The accused is acquitted under section 306 of the Criminal Procedure Code.
- The accused shall be set at liberty unless otherwise lawfully held.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT AT KAKAMEGA
CRIMINAL CASE NO: 50 OF 2008
REPUBLIC....................................................STATE COUNSEL
VERSUS
S M...................................................................ACCUSED
R U L I N G
The accused person is charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code.
The particulars are that the accused on the 23/11/2008 in Kakamega East District within Western province murdered S M.
The prosecution called two witnesses. PW1, P.C Wycliffe Odhiambo was based at Kakamega police station. He investigated the case. On 1/12/2008 he was instructed to investigate the case. He went to [particulars withheld] village and found that the deceased’s body had been retrieved from a river. There were members of the public and the area assistant chief. The accused had also been arrested. The deceased was the accused’s child aged two years. The body had no injuries and was taken to Kakamega Hospital mortuary.
According to PW1, he recorded statements from witnesses and noted that it is the accused who threw the deceased into the river. There was an eye witness who was a six years old child.
PW2, Dr Dickson Mchana Mwaludindi produced the post mortem report prepared by Dr. Oseke on 5/2/2008 at the Kakamega Provincial General Hospital. The doctor opined that the cause of death was cardiopulmonary arrest due hypoxemia Secondary to drowning.
The prosecution proceeded to close its case. The court has to decide whether the accused should be placed on his defence. From the evidence on record, no one saw the accused throwing the deceased on the river. The eye witness did not testify, the area assistant chief also was not called to testify the members of the public who arrested the accused were also not called to testify. The members of the public who arrested the accused were also not called to testify. The evidence on record is not sufficient enough to place the accused on his defence. There is no direct evidence against the accused. PW1’s evidence ought to have been corroborated by that of the eye witness left on its own, PW1’s evidence amounts to mere hearsay.
From the evidence on record, I do find that the prosecution has not established a prima facie case against the accused who is hereby acquitted under section 316 of the Criminal procedure code. The accused shall be set at liberty unless otherwise lawfully held.
Dated, delivered and signed at Kakamega this 24th day of September 2014.
SAID J. CHITEMBWE
JUDGE