[2018] KEHC 4780 (KLR)
The court found that the prosecution failed to establish a prima facie case against the accused. The evidence presented did not place the accused at the scene of the crime at the material time, nor did it establish the cause of death of the deceased. The prosecution did not take sufficient steps to secure the...
Source-derived case information.
- Citation
- [2018] KEHC 4780 (KLR)
- Parties
- Applicant: Republic; Defendant: Vincent Ongori Mochoge
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 147 of 2012
- Procedural Posture
- Criminal Case / Ruling on No Case to Answer
- Outcome
- acquittal
- Legal Topics
- Murder, Criminal Procedure, Standard of Proof, Acquittal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Vincent Ongori Mochoge
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 to be put on his defence for the offence of murder.
- 2 Whether the evidence adduced implicated the accused in the murder of the deceased.
- 3 Whether the cause of death of the deceased was established.
Ratio Decidendi
The court found that the prosecution failed to establish a prima facie case against the accused. The evidence presented did not place the accused at the scene of the crime at the material time, nor did it establish the cause of death of the deceased. The prosecution did not take sufficient steps to secure the attendance of further witnesses, and the only evidence before the court was insufficient to implicate the accused in the murder. Consequently, the accused was not required to be put on his defence, and a plea of not guilty was entered under section 306 of the Criminal Procedure Code. The accused was acquitted and set at liberty unless otherwise lawfully held.
Court Disposition
acquittal
Orders
- The accused, Vincent Ongori Mochoge, is acquitted of the murder of Lilian Kemunto Mogusu.
- The accused is set free unless otherwise lawfully held.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISII
CRIMINAL CASE NO. 147 OF 2012
REPUBLIC...................................................PROSECUTOR
VERSUS
VINCENT ONGORI MOCHOGE.....................ACCUSED
RULING
The accused, VINCENT ONGORI MOCHOGE, was charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code. It was alleged that on 8th December 2012 at Bonyariki Village, Bogeka Sub-location, Kisii Central District within Kisii County, he murdered Lilian Kerubo Mogusu.
The prosecution case was that the accused and deceased, who were husband and wife, had constant quarrels over allegations of infidelity on part of the deceased and on the material night, while armed with a panga and kitchen knife, he assaulted her resulting in her death.
The testimony of PW 1, Stephen Getumo, was that he was informed of the deceased’s death in the morning and he went to the scene where he found the deceased in a distressed condition nursing injuries on the hands and legs. The deceased was carried to the roadside but she died before she could be taken to hospital.
PW 2, Ongori Mochoge was only informed of the incident and the deceased had passed away. He also learnt that the accused had been arrested.
The prosecution did not call any further witnesses as I rejected the application for adjournment when the matter came up for hearing today, 7th August 2018. I considered that the prosecution had not taken sufficient steps to locate witnesses and bond them since the matter was last heard on 25th July 2016.
The only evidence before the court does not implicate the accused in the murder of the deceased. He was not placed at the locus in quo at the time the deceased was assaulted. Further the cause of death of the deceased was not established. There is insufficient evidence to put the accused on his defence as such. I enter a plea of not guilty under section 306 of the Criminal Procedure Code (Chapter 75 of the Laws of Kenya).
The accused, VINCENT ONGORI MOCHOGE is therefore acquitted of the murder of LILIAN KEMUNTO MOGUSU. He is set free unless otherwise lawfully held.
Ruling read and delivered in open Court this 7th August 2018.
D.S Majanja
Judge
Mr. Otieno, Senior Prosecution Counsel, instructed by Office of Director of Prosecutions
Mr. Okenye, Advocate for the Accused