[2019] KEHC 9951 (KLR)
The court found that the prosecution failed to establish a prima facie case against the accused persons. The evidence presented was inconsistent and unreliable, particularly the testimony of key witnesses whose accounts contradicted each other and whose credibility was in question. The only evidence linking the...
Source-derived case information.
- Citation
- [2019] KEHC 9951 (KLR)
- Parties
- Applicant: Republic; Defendant: Saviour Waswa; Defendant: Chrispine Wasike alias Friday
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 27 of 2017
- Procedural Posture
- Criminal Case / Ruling on No Case to Answer
- Outcome
- acquittal
- Judges
- KW Kiarie
- Legal Topics
- Murder, Prima Facie Case, Credibility of Witnesses, Burden of Proof
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Saviour Waswa
Defendant
Chrispine Wasike alias Friday
Defendant
Procedural Posture
Criminal Case / Ruling on No Case to Answer
Legal Issues
- 1 Whether the prosecution established a prima facie case to require the accused persons to be put on their defence.
- 2 Whether the evidence on record is sufficient to sustain a conviction if the accused opt to remain silent.
- 3 Whether the credibility of prosecution witnesses supports the charge of murder against the accused.
Ratio Decidendi
The court found that the prosecution failed to establish a prima facie case against the accused persons. The evidence presented was inconsistent and unreliable, particularly the testimony of key witnesses whose accounts contradicted each other and whose credibility was in question. The only evidence linking the first accused to the offence was from a witness whose reliability was undermined by inconsistencies and changes in his account. The court held that if the accused persons opted to remain silent, there would be no basis for conviction. Consequently, the prosecution did not meet the threshold required to put the accused on their defence, and the court acquitted both accused persons...
Court Disposition
acquittal
Orders
- Each accused is found not guilty and acquitted 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
32 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT BUSIA
CRIMINAL CASE NO. 27 OF 2017
REPUBLIC.........................................................................PROSECUTOR
VERSUS
SAVIOUR WASWA.............................................................1ST ACCUSED
CHRISPINE WASIKE ALIAS FRIDAY..........................2ND ACCUSED
RULING
1. Saviour WaswaandChrispine WasikealiasFridayare charged with an offence of murder contrary to section 203 as read with section 204 of the Penal Code.
The particulars of the offence are that on the 24th day of October, 2017 at Changara area, in North Teso sub county of Busia County, they murdered James Otikir.
2. The facts of the prosecution case are that the deceased was last seen alive on 24th October 2017 in company of the two accused persons. The trio were partaking alcohol together and left after a quarrel. The following morning the deceased was found unconscious and passed away on the way to the hospital. The post mortem indicated that he died as a result of severe head injury.
3. In Black’s Law Dictionary, 10th Edition, Prima facie case has been defined as follows:
1. 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.
4. The test as to whether a prima facie case has been established to warrant an accused to be called upon to tender his defence was prescribed in the case of
Ramanlal Trambaklal Bhatt vs. Republic (1957) E.A. 332. In the same case at 335 the court defined a prima facie case in the following terms:
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.
We can therefore deduce that if no conviction can be based from the evidence on record if an accused opts to exercise his Constitutional right to keep mum, then no prima facie case has been established.
5. The only evidence that linked the first accused to the offence is that of Francis Juma Makana (PW2) who testified that the first accused was in the bar where he was. When he (accused 1) went outside, he heard a voice say:
“Leave me alone”
He did not recognize this voice. He however changed during cross examination and attributed the voice to the deceased. The deceased was his nephew and since they came from the same area, he ought to have known his voice. This witness has credibility issues. He cannot be heard to say he did not recognize the voice but later change and claim that the voice was that of the deceased. In his statement to the police he indicated that the first accused beat the deceased on the shoulder but in his evidence in court he indicated that he (PW2) never left the bar. The court of appeal in the case of Ndungu Kimanyi vs. Republic [1979] KLR 283, held:
The witness in a criminal case upon whose evidence it is proposed to rely should not create an impression in the mind of the court that he is not a straightforward person, or raise a suspicion about his trustworthiness, or do (or say) something which indicates that he is a person of doubtful integrity, and therefore an unreliable witness which makes it unsafe to accept his evidence.
This description fits this witness; he cannot be relied upon to tell the truth.
6. According to the evidence of Titus Walukusi Omondi (PW1), on 24th October 2017 at about 6 p.m., he was in the home of Boyi with the deceased where they were partaking Uganda Waragi. Chrispine Wasike alias Friday (accused2) went and called the deceased out and asked him for his radio. A struggle ensued over the radio and the duo walked away. However, during cross examination, he said it was an argument and not a struggle. This version differed from that of Titus Imo (PW3). In his evidence, he (PW3) said that in company of others who must have included PW1, they found the deceased and the second accused taking Uganda Waragi. The two had exhausted the stock and the deceased gave them what he had bought. The deceased and the second accused left without telling them where they were going. He testified that the deceased was drunk and that the two did not leave while quarreling. The evidence by these two witnesses cannot be reconciled.
7. Article 50(2) (i) of the Constitution of Kenya provides as follows:
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 not to testify, I cannot convict either of them. This therefore means that the prosecution has not established a prima facie case against each accused.
8. I accordingly make a finding of not guilty and acquit each accused under section 306 (1) of the Criminal Procedure Code. Each is set at liberty unless if otherwise lawfully held.
DELIVEREDandSIGNEDatBUSIA this 19thdayof February, 2019
KIARIE WAWERU KIARIE
JUDGE