Case ID:201653

Republic (DPP) v Ongeche (Criminal Case 77 of 2015) [2022] KEHC 12527 (KLR) (17 June 2022) (Ruling)

Case Metadata

Case Number:

Criminal Case 77 of 2015

Parties:

Republic (DPP) v Ongeche

Date Delivered:

17 Jun 2022

Case Class:

Court:

High Court at Kakamega

Case Action:

Ruling

Judge(s):

Patrick J. Okwaro Otieno

Citation:

Republic (DPP) v Ongeche (Criminal Case 77 of 2015) [2022] KEHC 12527 (KLR) (17 June 2022) (Ruling)

Advocates:

N/A for Nyikuli for for Accused, Ms. Chala for for State

Court Division:

Criminal

County:

Kakamega

Advocates:

N/A for Nyikuli for for Accused, Ms. Chala for for State

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

Republic (DPP) v Ongeche (Criminal Case 77 of 2015) [2022] KEHC 12527 (KLR) (17 June 2022) (Ruling)

Neutral citation:

[2022] KEHC 12527 (KLR)

Republic of Kenya

In the High Court at Kakamega

Criminal Case 77 of 2015

PJO Otieno, J

June 17, 2022

Between

Republic (DPP)

Prosecution

and

Maurice Wesonga Ongeche

Accused

Ruling

1.

The accused faces the charge of murder contrary to section 203 as read with section 204 of the

Penal Code

. The particulars are that on the December 26, 2015 at Matende village, Shitari sub-location in Butere district within Kakamega county, he murdered Johnson Otieno Ongede.

2.

Having denied the charge and a plea of not guilty entered the prosecution called three witnesses towards proving the case against the accused.

3.

PW

1 was a resident of the area who was woken up by one Jackson Aswani, a village elder with a report that the accused had killed the deceased. He proceeded to the scene and found the lifeless body of the deceased which body was later collected by police and taken to the mortuary where an autopsy was conducted and the body released to the relatives for interment. In cross examination, he denied having witnessed the attack and reiterated that he acted on the information by the clan elder.

4.

PW

2 was the pathologist who conducted the autopsy who made a conclusion that the death had been caused by closed head injury secondary to sharp force trauma.

5.

PW

3 and the last witness was the investigating officer whose evidence was to the effect that upon a report of murder incident his team visited the scene the same night and found body of the deceased lying dead in his house with visible injuries on the head. On inquiry from family members, he received information that the family was celebrating christmas eve when a quarrel arose between the deceased and the accused both of whom were drunk, out of which the accused hit the deceased on the head, the deceased became unconscious and later died. The accused then went at large and was only arrested the following day. There was information that the accused used a rungu to hit the deceased but the weapon of attack was never recovered.

6.

From that evidence, the only evidence linking the accused with the death is that of

PW

1 and

PW

3. Both were not eye witness and told the court what they had been told by people they called eye witness who were however not called.

7.

I consider the evidence by the two witnesses to have been hearsay evidence which cannot by itself without the evidence of the person who witnessed the incident suffice for a conviction.

8.

The court having taken the evidence upto the close of the prosecution’s case is mandated to determine whether the prosecution has availed evidence that show,

prima facie

, that the accused has a case to answer so that he is called upon to defend himself.

9.

A

prima facie

case has been with finality defined to be a case that would support a conviction even if the accused were put on his defence and opts to keep quiet would still support a conviction. Put the other way, a

prima facie

case is one on which the court would enter a conviction even in the absence of further evidence. It is a case that establishes the guilt of the accused and thus calls for a rebuttal by the accused. It must be the kind if a case that need no help by the accused in filling the gaps left or the doubts created in the mind of the court by the evidence on record.

10.

In the context of the evidence in this matter, there was no iota of evidence by the clan elder who reported to

PW

1 nor was there any evidence by the family members

PW

3 talked of having recorded statements from.

11.

In the absence of any evidence linking the accused with the death of the deceased, it would be futile to place the accused on his defence unless the court was keen to be seen to shift the burden upon the accused to prove his innocence.

12.

Accordingly, it is decreed that the accused has no case to answer and is therefore acquitted of the charge under section 210 of the

Criminal Procedure Code

. Let the accused be released forthwith unless otherwise lawfully held.

13.

Let the surety be discharged and security deposited be released to him.

DATED, SIGNED AND DELIVERED AT KAKAMEGA, ONLINE, THIS 17

TH

DAY OF JUNE 2022.

PATRICK J. O. OTIENO

JUDGE

In the presence of:

N/A for Nyikuli for the Accused

Ms. Chala for the State

Court Assistant: Kulubi