Prosecutor v Samuel Omondi Gombe alias Agok & 3 others [2016] KEHC 639 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT AT KISUMU

CRIMINAL CASE NO. 51 OF 2012

BETWEEN

PROSECUTOR......................................................................................... REPUBLIC

AND

SAMUEL OMONDI GOMBEaliasAGOK ....................................... 1ST ACCUSED

VITALIS OBULA OKENDOaliasDAKTARI ..................................... 2ND ACCUSED

HEZRON OTIENO OKENDOaliasOTIS ......................................... 3RD ACCUSED

CHARLES OTIENO OMOLO .......................................................... 4TH ACCUSED

RULING

1. On 20th July 2012, this Court was informed that SAMUEL OMONDI GOMBEaliasAGOK, VITALIS OBOLA OKENDOaliasDAKTARI, HEZRON OTIENO OKENDOaliasOTISand CHARLES OTIENO OMULOhad murdered MESHACK OWINO MUHUR(the deceased) on 19th July 2012 at Karapul Village, Siaya Township, Siaya District jointly with others not before the Court.

2. After considering the testimony of 5 prosecution witnesses, I am satisfied that there is sufficient evidence to put the 1st, 2nd and 3rd accused on their defence. The principal eye witness did not identify the 4th accused nor was there independent corroborative evidence to implicate him.  The investigating officer Corporal Patrick Malumana (PW 5) admitted that the 4th accused was implicated by the co-accused. In the absence of corroboration, this is evidence of the weakest kind. Accordingly, the 4th accused, CHARLES OTIENO OMOLLO, has no case to answer and I hereby enter a finding of not guilty under Section 306 of the Criminal Procedure Code (Chapter 75 of the Laws of Kenya) and he is accordingly acquitted.

3. The 1st, 2nd and 3rd accused are now informed of their right to remain silent, to give unsworn statement in which case they shall not be cross-examined or to give sworn testimony in which case they shall be cross-examined by the prosecution. They may also elect to make an address through their advocate. They are also informed of their right to call witnesses.

DATED and DELIVERED at KISUMU this 30th day of November 2016.

D.S. MAJANJA

JUDGE

Mr Adiso instructed by Adiso and Company Advocates for the accused.

Ms Osoro, Prosecution Counsel, instructed by the Office of the Director of Public Prosecutions, for the State.