[2012] KEHC 2595 (KLR)
The court found that the prosecution failed to establish a prima facie case against the accused persons. The evidence presented was entirely circumstantial and did not point irresistibly to the guilt of the accused. The testimony of Anne Wanjiku regarding the alleged statement by the 1st accused was vague, lacking...
Source-derived case information.
- Citation
- [2012] KEHC 2595 (KLR)
- Parties
- Applicant: Republic; Defendant: Simon Ngahu Njuguna; Defendant: John Munyao Makua
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 81 of 2008
- Procedural Posture
- Criminal Case / Ruling at Close of Prosecution Case
- Outcome
- acquittal
- Judges
- SP Ouko
- Legal Topics
- Murder, Circumstantial Evidence, Confession, Prima Facie Case
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Simon Ngahu Njuguna
Defendant
John Munyao Makua
Defendant
Procedural Posture
Criminal Case / Ruling at Close of Prosecution Case
Legal Issues
- 1 Whether the prosecution established a prima facie case against the accused persons to warrant their being put on their defence.
- 2 Whether the circumstantial evidence adduced was sufficient to link the accused persons to the murder of the deceased.
- 3 Whether any admissible confession or direct evidence existed against the accused persons.
Ratio Decidendi
The court found that the prosecution failed to establish a prima facie case against the accused persons. The evidence presented was entirely circumstantial and did not point irresistibly to the guilt of the accused. The testimony of Anne Wanjiku regarding the alleged statement by the 1st accused was vague, lacking in detail, and did not amount to admissible evidence. The alleged confession by the 1st accused was denied and not substantiated by any admissible evidence. Furthermore, the police conceded that the prime suspects had disappeared and there was no direct or indirect evidence linking the accused to the murder. In the absence of any credible evidence, the court held that it would...
Court Disposition
acquittal
Orders
- The accused persons are acquitted of the charge of murder.
- The accused persons shall be set at liberty forthwith unless otherwise lawfully held.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAKURU
Criminal Case 81 of 2008
REPUBLIC…………………………………………………………..PROSECUTOR
VERSUS
SIMON NGAHU NJUGUNA…………….…………………………...1ST ACCUSED
JOHN MUNYAO MAKUA…………………..………………………2ND ACCUSED
RULING
The accused persons are charged in this court on the allegations that on the night of 1st and 2nd June, 2008 at Bondeni area, they jointly murdered the deceased, Charles Waithaka Tarira.
The only relevant evidence presented at the close of the prosecution case is that on the night in question the deceased had dinner with his brother, Gerald Ngichu (Gerald) at a local trading centre before the deceased left for his parent’s home at 9. 00p.m. Later Gerald also went home but found that the deceased had not arrived. The following morning a neighbour, Geoffrey Kariuki while on his way to Bahati forest stumbled on the body of the deceased. The family was alerted and the matter reported to the police. I pause here to clarify that the evidence of Gerald was expunged from the record after the prosecution failed to procure his attendance to complete his testimony after he had been stood down. Geoffrey Kariuki who is said to have come by the body of the deceased was not called.
Having said that, the prosecution called a cousin of the deceased, Anne Wanjiku (Anne) whose evidence was to the effect that one (1) month after the death of the deceased, she overheard the 1st accused person explaining to his employers, Mama Ciku and Mama Jose how the deceased met his death. Anne alerted other members of the family who arranged for the arrest of the 1st accused person.
The 2nd accused was arrested but it is not clear why he was arrested. However, based on the information allegedly received by the police from the accused persons, Monica Wanjiku, Daniel Gacheru and Peter Wambui were arrested but released. One suspect was, however, not traced. The investigating officer charged the accused persons for the reason that the 1st accused person confessed to the killing of the deceased and at the strength of Anne’s evidence.
At the close of the prosecution case, the court must determine if that evidence on record constitutes a prima facie case. A prima facie case is made out if on the evidence the court can convict if the accused person does not call evidence in rebuttal. See Ramanlal Trambaklal Bhatt V.Republic (1957) EA 332.
While it is common ground that the deceased died as a result of severe hypoxia (suffocation) due to strangulation on the neck region there is no direct evidence as to who did it.
The prosecution case is therefore based on circumstantial evidence. On the authorities of Republic V. Kipkering Arap Koske & Another (1949) 1 EACA 135 and Simeon Musoke V. Republic (1958) EA 715 it is now settled that a conviction can only be based on circumstantial evidence if that evidence points irresistibly to the guilt of the accused and only if there are no co-existing factors that would weaken or destroy the inference of guilt.
What Anne alleged to have heard the 1st accused person say has no effect on the admissible evidence. The exact words or the effect of the words were not disclosed. Yet it is that evidence that the police relied on to charge the accused persons. Again the police said they relied on a confession by the 1st accused but admitted that the 1st accused person denied any knowledge as to how the deceased died when presented to an inspector of police. There was no confession.
Finally, it was conceded by the police that the “prime” suspect in this matter, by the names Kang’ethe and Maina disappeared. There is no evidence linking any of the accused persons with the death of the deceased. They are acquitted and shall accordingly be set at liberty forthwith unless lawfully held.
Dated, Signed and Delivered at Nakuru this 27th day of July, 2012.
W. OUKO
JUDGE