Republic (DPP) v Ongeche [2022] KEHC 12527 (KLR)

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. PW1 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. PW2 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. PW3 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 PW1 and PW3. 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 PW1 nor was there any evidence by the family members PW3 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 17TH DAY OF JUNE 2022. PATRICK J. O. OTIENOJUDGEIn the presence of:N/A for Nyikuli for the AccusedMs. Chala for the StateCourt Assistant: Kulubi