[2017] KEHC 6870 (KLR)
The court found that the prosecution had failed to call any witnesses or supply witness statements to the defence, resulting in repeated adjournments and a failure to proceed with the case since 2014. This conduct violated the accused's constitutional right to a fair trial as guaranteed under Article 50 of the...
Source-derived case information.
- Citation
- [2017] KEHC 6870 (KLR)
- Parties
- Applicant: Republic; Defendant: Timothy Omutembete AlbeBt
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 53 of 2014
- Procedural Posture
- Criminal Case / Judgment
- Outcome
- acquittal
- Legal Topics
- Murder, Fair Trial Rights, Constitutional Violation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Timothy Omutembete AlbeBt
Defendant
Procedural Posture
Criminal Case / Judgment
Legal Issues
- 1 Whether the accused's right to a fair trial under Article 50 of the Constitution was violated by the prosecution's failure to call witnesses and supply witness statements.
- 2 Whether the prosecution adduced any evidence to support the charge of murder against the accused.
- 3 Whether the accused should be acquitted under Section 306(1) of the Criminal Procedure Code.
Ratio Decidendi
The court found that the prosecution had failed to call any witnesses or supply witness statements to the defence, resulting in repeated adjournments and a failure to proceed with the case since 2014. This conduct violated the accused's constitutional right to a fair trial as guaranteed under Article 50 of the Constitution. Furthermore, the prosecution did not adduce any evidence to support the charge of murder against the accused. In the absence of any evidence, and in light of the violation of the accused's fair trial rights, the court held that the accused could not be found guilty of the charge. Accordingly, the accused was acquitted under Section 306(1) of the Criminal Procedure Code.
Court Disposition
acquittal
Orders
- The accused is acquitted of the charge of murder under Section 306(1) of the Criminal Procedure Code.
- Unless otherwise lawfully held, the accused shall be released from prison custody forthwith.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAKAMEGA
CRIMINAL CASE NO. 53 OF 2014
REPUBLIC……………………………………………………..PROSECUTOR
VERSUS
TIMOTHY OMUTEMBETE ALBEBT………………....……………ACCUSED
J U D G M E N T
Introduction
1. The accused herein has been charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code.
2. The particulars of the offence are that on the `15th day of October, 2014 at Shembekho Village Matioli Sub location South Butsotso Location in Kakamega Central District within Kakamega County he(accuse) murdered Geoffrey Makunda
3. The accused pleaded not guilty to the charge on 11. 11. 2014 and the case fixed for hearing.
The prosecution Case.
4. For reasons that are within their possession, prosecution have failed to call witnesses and supply witness statements to the defence, thus derailing the hearing process.
Analysis
5. The case was adjourned many times at the behest of the prosecution. The case is fairly old and has not taken off since the year 2014. The defence have also not been supplied with any witness statements todate.
Findings
6. I find that the accused’s rights to a fair trial as enshrined under Article 50(2)(b), (c ), ( e) and (j) of the Constitution have been violated by the prosecution. The prosecution has also not adduced any iota of evidence in support of the case against the accused. For the reasons set out above the case against the accused is dismissed. The accused is therefore not found guilty of the charge of murder as alleged. He is acquitted of the same under Section 306(1) of the Criminal Procedure Code. Unless he is otherwise being lawfully held, he shall be released from prison custody forthwith. Orders accordingly.
Judgment delivered, dated and signed in open court at Kakamega this 14th day of March 2017
RUTH N. SITATI
JUDGE
In the presence of;
Mr. Jamsumba (present)……………………….……………..for state
Mr. Osango (present)……………………………..…….……for accused
Polycap………………………………………………….…Court Assistant