[2023] KEHC 2760 (KLR)
The court found that the prosecution had established a prima facie case against the 1st and 2nd accused, as they were placed at the scene by three eyewitnesses. However, the 3rd accused was not placed at the scene by any eyewitness, and the only evidence against him was uncorroborated information from his...
Source-derived case information.
- Citation
- [2023] KEHC 2760 (KLR)
- Parties
- Applicant: Republic; Defendant: Omukandi Ben Wawire; Defendant: Joram Baraza; Defendant: Anthony Wafula Mukambi
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 38 of 2018
- Procedural Posture
- Criminal Case / Ruling on Case to Answer
- Outcome
- 3rd accused acquitted and discharged; 1st and 2nd accused put on their defence.
- Judges
- WM Musyoka
- Legal Topics
- Prima Facie Case, Burden of Proof, Acquittal, Eyewitness Testimony
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Omukandi Ben Wawire
Defendant
Joram Baraza
Defendant
Anthony Wafula Mukambi
Defendant
Procedural Posture
Criminal Case / Ruling on Case to Answer
Legal Issues
- 1 Whether the prosecution established a prima facie case against each accused person to warrant being put on their defence.
- 2 Whether the evidence against the 3rd accused was sufficient to require him to answer to the charge.
Ratio Decidendi
The court found that the prosecution had established a prima facie case against the 1st and 2nd accused, as they were placed at the scene by three eyewitnesses. However, the 3rd accused was not placed at the scene by any eyewitness, and the only evidence against him was uncorroborated information from his co-accused, which is insufficient to establish a case to answer. The legal burden of proof remains with the prosecution, and in the absence of corroborative evidence, the 3rd accused could not be called upon to defend himself. Consequently, the 3rd accused was acquitted and discharged, while the 1st and 2nd accused were put on their defence.
Court Disposition
3rd accused acquitted and discharged; 1st and 2nd accused put on their defence.
Orders
- The 3rd accused, Anthony Wafula Mukambi, is acquitted and discharged.
- If the 3rd accused is in custody, he shall be released forthwith unless otherwise lawfully held.
Full Case Text
Judgment text and source record
24 paragraphs
Republic v Wawire & 2 others (Criminal Case 38 of 2018) [2023] KEHC 2760 (KLR) (24 March 2023) (Ruling)
Neutral citation: [2023] KEHC 2760 (KLR)
Republic of Kenya
In the High Court at Kakamega
Criminal Case 38 of 2018
WM Musyoka, J
March 24, 2023
Between
Republic
Prosecution
and
Omukandi Ben Wawire
1st Accused
Joram Baraza
2nd Accused
Anthony Wafula Mukambi
3rd Accused
Ruling
1. I have gone through the record herein, and I also had the benefit of hearing and seeing all the witnesses testify herein.
2. Am persuaded that the Republic has established a prima facie case against the 1st and 2nd accused persons, and I hereby put them on their defence, as they were both placed at the scene by PW1, PW2 and PW3.
3. I, however, find that no case has been established against the 3rd accused, to warrant his being put on his defence, for the eyewitnesses, PW1, PW2 and PW3, although they knew him, did not place him in the scene. His name came from the investigating officer, PW5, based on information gotten from the 1st and 2nd accused persons, during interrogation. They allegedly mentioned the 3rd accused.
4. The legal burden of proof always lies with the prosecution, and at this stage of the proceedings, no evidence has been adduced against the 3rd accused. Whatever the 1st and 2nd accused may say in their defence against their co-accused, the 3rd accused, would amount to mere accomplice evidence, whose weight is almost nil, unless corroborated. Corroboration can only be found in other evidence. There is no other evidence against the 3rd accused so far.
5. Consequently, I shall find that the 3rd accused person has no case to answer, I shall accordingly discharge and acquit him, as I hereby do. Should he be in custody, he shall be released forthwith, unless he is otherwise lawfully held.
RULING DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA THIS 24 TH DAY OF MARCH 2023W.M. MUSYOKAJUDGEMr. Erick Zalo, Court Assistant.Ms. Kagai, instructed by the Director of Public Prosecutions, for the Republic.Ms. Mahuni, Advocate for the accused person.