[2022] KEHC 27085 (KLR)
The court found that the prosecution's evidence was based solely on suspicion arising from prior disagreements between the accused and one of the deceased, with no direct or circumstantial evidence linking the accused to the act of arson that caused the deaths. The dying declaration was not based on eyewitness...
Source-derived case information.
- Citation
- [2022] KEHC 27085 (KLR)
- Parties
- Applicant: Republic; Defendant: Samwel Jonyo Ogweno; Defendant: Molly Atieno Ogweno; Defendant: Felix Owino Ogweno
- Court
- High Court
- Court Station
- High Court at Homa Bay
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 27 of 2018
- Procedural Posture
- Criminal Case / Ruling on No Case to Answer
- Outcome
- acquittal
- Judges
- KW Kiarie
- Legal Topics
- Murder, Prima Facie Case, Standard of Proof, Acquittal, Arson, Constitutional Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Samwel Jonyo Ogweno
Defendant
Molly Atieno Ogweno
Defendant
Felix Owino Ogweno
Defendant
Procedural Posture
Criminal Case / Ruling on No Case to Answer
Legal Issues
- 1 Whether the prosecution established a prima facie case against the accused persons for the offence of murder.
- 2 Whether suspicion alone is sufficient to warrant putting the accused on their defence.
- 3 Whether the accused persons should be acquitted under section 306(1) of the Criminal Procedure Code.
Ratio Decidendi
The court found that the prosecution's evidence was based solely on suspicion arising from prior disagreements between the accused and one of the deceased, with no direct or circumstantial evidence linking the accused to the act of arson that caused the deaths. The dying declaration was not based on eyewitness identification of the perpetrators. The court held that suspicion, however strong, is insufficient to establish a prima facie case or to warrant putting the accused on their defence. Consequently, the prosecution failed to meet the threshold required to establish a prima facie case for murder, and the accused were acquitted under section 306(1) of the Criminal Procedure Code.
Court Disposition
acquittal
Orders
- Each accused is acquitted of the offence of murder under section 306(1) of the Criminal Procedure Code.
- Each accused is set at liberty unless otherwise lawfully held.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT HOMA BAY
CRIMINAL CASE NO. 27 OF 2018
REPUBLIC.................................................................................................PROSECUTOR
VERSUS
SAMWEL JONYO OGWENO.................................................................1ST ACCUSED
MOLLY ATIENO OGWENO...................................................................2ND ACCUSED
FELIX OWINO OGWENO......................................................................3RD ACCUSED
RULING
1. Samwel Jonyo Ogweno, Molly Atieno Ogweno and Felix Owino Ogweno are charged with two counts of murder contrary to section 203 as read with section 204 of the Penal Code.
2. The particulars of the offences are that on the night of 7th and 8th day of July, 2018 at Kobala village, Kawino sub location in Rachuonyo South Sub County within Homa Bay County, murdered Harrison Jonyo Ogeka and Iscah Atieno Jonyo.
3. The deceased herein died after sustaining burns when their house was set on fire by arsonist(s).
4. There is no doubt that the house of the couple was deliberately set on fire for a container that was smelling of petrol was retrieved from the family’s well. The issue is who did it.
5. All material witnesses who were called to testify gave evidence of existing differences between the 1st accused with Harrison Jonyo Ogeka. Joel Owenga Oyonge (PW1) testified that when he found Harrison Jonyo Ogeka in hospital, he told him that he was late for his son, his wife and children had killed him.
6. The evidence on record does not indicate that he saw the arsonists. He was therefore suspecting them owing to their earlier disagreements. The evidence on record is therefore mere suspicion. Suspicion alone however strong is worthless. The Court of Appeal in in the case of Sawe vs. Republic[2003] KLR 354, held as follows:
Suspicion, however strong, cannot provide the basis of inferring guilt which must be proved by evidence beyond reasonable doubt.
7. In the Black’s Law Dictionary, 10th Edition prima facie case is defined as follows:
Prima facie case. (1805) I. The establishment of a legally required rebuttable presumption. 2. A party's production of enough evidence to allow the fact-trier to infer the fact at issue and rule in the party's favor.
8. The Court of appeal in the case of Ramanlal Trambaklal Bhatt vs. R [1957] E.A 332 at 334 and 335, defined prima facie case as follows:
It may not be easy to define what is meant by a “prima facie case”, but at least it must mean one on which a reasonable tribunal, properly directing its mind to the law and the evidence could convict if no explanation is offered by the defence.
9. Article 50 (2) (i) of the Constitution of Kenya provides:
(2) Every accused person has the right to a fair trial, which includes the right-
(i) to remain silent, and not to testify during the proceedings;
In the instant case, if the accused persons opt to exercise their constitutional right hereinabove stated, I cannot convict them based on the evidence on record. This therefore means that the prosecution has not established a prima facie case against them. I accordingly acquit each one of them of the offence of murder under section 306 (1) of the Criminal Procedure Code. Each is set at liberty unless if otherwise lawfully held.
DELIVERED AND SIGNED AT HOMA BAY THIS 22ND DAY OF MARCH, 2022
KIARIE WAWERU KIARIE
JUDGE