[2011] KEHC 3997 (KLR)
The court found that the prosecution failed to adduce any evidence directly implicating the accused with the offence of murder. The key witness, PW1, recanted her earlier statement and testified that she could not identify the person who emerged from the deceased's house. PW5, the only other eye witness, also stated...
Source-derived case information.
- Citation
- [2011] KEHC 3997 (KLR)
- Parties
- Applicant: Republic; Defendant: Silas Mwiti
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 29 of 2006
- Procedural Posture
- Criminal Case / Ruling at Close of Prosecution Case
- Outcome
- acquittal at close of prosecution case
- Judges
- CJ Kendagor, AM Cockar
- Legal Topics
- Murder, Burden of Proof, Hostile Witness, Identification Evidence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Silas Mwiti
Defendant
Procedural Posture
Criminal Case / Ruling at Close of Prosecution Case
Legal Issues
- 1 Whether the prosecution proved beyond reasonable doubt that the accused caused the death of the deceased.
- 2 Whether the evidence of a hostile witness can be relied upon without corroboration.
- 3 Whether there was sufficient identification evidence linking the accused to the offence.
Ratio Decidendi
The court found that the prosecution failed to adduce any evidence directly implicating the accused with the offence of murder. The key witness, PW1, recanted her earlier statement and testified that she could not identify the person who emerged from the deceased's house. PW5, the only other eye witness, also stated she could not identify the person due to darkness. The rest of the witnesses were not eye witnesses and their evidence was merely formal. The law requires that the evidence of a hostile witness must be corroborated, and in this case, there was no corroboration from any other prosecution witness. As a result, there was no evidence upon which the accused could be called upon to...
Court Disposition
acquittal at close of prosecution case
Orders
- The accused, Silas Mwiti, is acquitted under Section 210 of the Criminal Procedure Code.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MERU
CRIMINAL CASE NO. 29 OF 2006
REPUBLIC........................................................................................................PROSECUTOR
VERSUS
SILAS MWITI.............................................................................................................ACCUSED
RULING
The accused is charged with murder contrary to Section 203 as read with S.204 of PC. H is alleged to have murdered AYUB KIRIMANIA on 7TH April 2006 at 7. 30 p.m at Kijijono village Katheri Sub-Location in Meru Central District.
The accused is a son of the deceased. The prosecution called 5 witnesses. PW1 was wife of deceased and mother of the accused. She was present at the home preparing supper when she heard her husband screaming. PW1 stated that she hurried, went out of the kitchen where she was, upto the door of the house where the deceased was seated. PW1’s evidence was that a man emerged from the house where the deceased was and ran towards the direction where the accused’s house was. She adduced that she did not see the face of that person and neither could she identify him.
PW5 was daughter of the deceased and sister of the accused. She too was seated with her mother preparing supper when she heard her father scream twice. She described the first scream as being stronger and the second one being muzzled. She corroborates PW1’s evidence that they both went out of the kitchen toward the deceased’s house.
However she says that they did not enter the house because they were afraid and also due to fact that there was pitch darkness. PW2 confirms that a man ran out of the deceased’s house towards the direction where the accused’s house was.
PW5 said she could not identify the person as it was dark.
The rest of the witnesses were not eye witnesses of the incident. Their evidence was formal.
The onus was on the prosecution to prove the charge against the accused, that it was his act or omission which caused the death of the deceased.
PW1, the key witness in this case was treated as a hostile witness by the prosecution because of recanting her statement to the police. Her evidence in court was she could not identify the person who emerged from the deceased’s house after attacking him. In her statement to the police, PW1 had implicated the accused as the one she saw emerge from the house where the deceased was eventually found dead.
The law of evidence requires that evidence of a hostile witness needs corroboration to be relied upon. I sought for but found no corroboration form the prosecution case implicating the accused with this offence. PW5, the only other eye witness of the incident denies identifying the person who emerged from her father’s house.
At the close of the Prosecution case I found that the prosecution has adduced no evidence which implicates the accused with this offence. There was no iota of evidence against the accused. Consequently I acquit him at his stage under Section 30 of the CPC.
Dated, signed and delivered at Meru this 17th Day of February 2011.
LESIIT, J
JUDGE
17TH February 2011
Coram:
Lesiit -Judge
Kirimi Court clerk
Mr. Musau for State
Mr. Ntarangwi holding brief for accused present
Ruling was read, signed and delivered in open court this 17th February 2011.
LESIIT J.
JUDGE
Dated Signed and delivered at Meru this 17th day of Feb 2011
LESIIT, J
JUDGE