[2019] KEHC 8657 (KLR)
The court found that none of the prosecution witnesses provided direct or circumstantial evidence linking the accused to the death of the deceased. Allegations of threats by the accused were not substantiated by the witnesses, and no evidence was tendered to prove any altercation or involvement of the accused in the...
Source-derived case information.
- Citation
- [2019] KEHC 8657 (KLR)
- Parties
- Applicant: Republic; Defendant: Wilson Gombe Omondi
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 12 of 2017
- Procedural Posture
- Criminal Case / Ruling on Whether Accused Has a Case to Answer at Close of Prosecution Case
- Outcome
- acquittal
- Judges
- TW Cherere
- Legal Topics
- Murder, Burden of Proof, Standard of Proof, Criminal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Wilson Gombe Omondi
Defendant
Procedural Posture
Criminal Case / Ruling on Whether Accused Has a Case to Answer at Close of Prosecution Case
Legal Issues
- 1 Whether the prosecution established a prima facie case against the accused to warrant putting him on his defence.
- 2 Whether there was sufficient evidence, direct or circumstantial, linking the accused to the death of the deceased.
Ratio Decidendi
The court found that none of the prosecution witnesses provided direct or circumstantial evidence linking the accused to the death of the deceased. Allegations of threats by the accused were not substantiated by the witnesses, and no evidence was tendered to prove any altercation or involvement of the accused in the fatal injuries sustained by the deceased. The postmortem form was not produced, and the only evidence of death was the identification of the body. The court concluded that the prosecution failed to establish a prima facie case against the accused, and therefore, it would be futile and academic to put the accused on his defence. As such, the accused was found not guilty under...
Court Disposition
acquittal
Orders
- Accused is found not guilty under Section 306 of the Criminal Procedure Code.
- Accused is ordered to be set at liberty unless otherwise lawfully held.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
(CORAM: CHERERE-J_
CRIMINAL CASE (MURDER) NO. 12 OF 2017
REPUBLIC............................................................ PROSECUTOR
VERSUS
WILSON GOMBE OMONDI......................................ACCUSED
RULING
1. Accused is charged with the Offence of Murder Contrary to Section 203 as read with Section 204 of the Penal Code.
The particulars of the charge are that on 19th January, 2017 at Nyahera in Kisumu West Sub-County within Kisumu County murdered Jacktone Ouma Ouko.
2. In support of its case, the state called a total of seven (7) witnesses whose evidence I have summarized as follows:
3. PW 1 William Oumathe deceased’s father found the deceased injured on the night of 19th January, 2017, escorted him to hospital where he died on 23rd January, 2017. It was his evidence that he did not know the person/s that assaulted his son but that deceased’s wife told him that accused had issued threats to the deceased and it was for that reason that accused was arrested and charged.
4. PW2 Eunice Akinyi deceased’s wife stated that she did not know the person/s that caused her husband fatal injuries. PW3 Caroline Achieng Abonyo recalled that on 18th January, 2017, she found deceased lying outside her house with serious injuries. That she and her husband escorted him home. She similarly told court that she did not know the person/s that assaulted the deceased. PW4 Godfrey Ouma Kisira a village elder and PW5 David Ochieng Ouma, deceased’s son also stated that they did not know how the deceased met his death.
5. PW6 CPL Evalyne Savulaon 21st January, 2017 received a report from PW1 that his son had been assaulted and seriously injured. It was her evidence that on 19. 1.17, accused and his father had reported that they had been attacked by the deceased. The witness told court that after the death of the deceased, accused’s report was treated as a cover up and he was arrested and charged. PW7 Truphosa Atieno Oyula on 20. 1.17 identified the body of the deceased, who was her brother, to the doctor that conducted a postmortem at Jaramogi Oginga Odinga Teaching and Referral Hospital.
6. injuries. PW3 Caroline Achieng Abonyo recalled that on 18th January, 2017, she found deceased lying outside her house with serious injuries. That she and her husband escorted him home. She similarly told court that she did not know the person/s that assaulted the deceased. PW4 Godfrey Ouma Kisira a village elder and PW5 David Ochieng Ouma, deceased’s son also stated that they did not know how the deceased met his death.
7. PW6 CPL Evalyne Savulaon 21st January, 2017 received a report from PW1 that his son had been assaulted and seriously injured. It was her evidence that on 19. 1.17, accused and his father had reported that they had been attacked by the deceased. The witness told court that after the death of the deceased, accused’s report was treated as a cover up and he was arrested and charged. PW7 Truphosa Atieno Oyula on 20. 1.17 identified the body of the deceased, who was her brother, to the doctor that conducted a postmortem at Jaramogi Oginga Odinga Teaching and Referral Hospital.
8. At the close of the prosecution case, the postmortem form was not produced but evidence by PW7 Truphosa Atieno Oyula that identified the body to the doctor that conducted a postmortem confirms that indeed Jacktone Ouma Ouko died.
9. PW2 who was alleged by PW1 to have stated that accused had threatened to harm the deceased did not give such evidence. PW5 alleged that accused had threatened to cut deceased into pieces but there is no evidence to prove that it was the accused that injured the deceased. None of the prosecution witnesses tendered direct or circumstantial evidence linking accused to the death of the deceased. There was no evidence of any altercation between the deceased and accused as stated by PW6 since no police report was tendered in court in support thereof.
Disposition
10. As a result, I am not persuaded that there is sufficient evidence to warrant this Court to put the Accused person on his defence because to do so would be an academic exercise in futility. The evidence on record is such that it cannot sustain a conviction in the event that accused is placed on his defence and he opts to remain silent.
11. Consequently, under the Provisions of Section 306 of the Criminal Procedure Code, Accused is hereby found NOT GUILTY and it is ordered that he be set at liberty unless otherwise lawfully held. It is so ordered.
DELIVERED AND SIGNED IN KISUMU THIS....28TH.....DAY OF....March....2019
T. W. CHERERE
JUDGE
Read in open court in the presence of-
Court Assistant - Felix
Accused - Present
For Accused - Mr Adiso
For the State - Ms Githo