REPUBLIC v ANDREA ILOBA & PATRICK MUHANJI [2011] KEHC 2780 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KAKAMEGA

CRIMINAL CASE NO. 6 OF 2004

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

V E R S U S

1. ANDREA ILOBA.........................................................................ACCUSED

2. PATRICK MUHANJI..........................................................................ACCUSED

3. DICKSON SHITSELI (deceased)

R U L I N G

1. The accused persons herein were first arraigned in this court on 16. 2.2004 where they faced the charge of murder contrary to section 203andsection 204 of the Penal Code. It was alleged that on 14. 1.2004 at Busalwa village in Kakamega District, they murdered Timona Mudi. They denied the charge when they took plea on 26. 4.2004 and the case was fixed for hearing on 8. 11. 2004and9. 11. 2004. On both dates, no witness was availed and thereafter, it was fixed for hearing and/or mention on 25. 11. 2004, 18. 1.2005, 31. 1.2005, 2. 11. 2005, 8. 11. 2005, 3. 7.2006, 4. 7.2006, 5. 2.2007, 6. 2.2007and on27. 6.2007, G.B.M. Kariuki, J. took the evidence of two witnesses. The learned judge then adjourned the hearing to 28. 6.2007 but on that date as well as on 18. 9.2007, 6. 2.2008, 18. 2.2008, 17. 6.2008, 7. 10. 2008, 11. 3.2009,and12. 3.2009, no witness was availed and on the latter date, Ochieng J. granted the Republic the last adjournment and fixed the hearing for 19. 11. 2009. Neither on that date nor on 3. 11. 2009 when Chitembwe J. ordered the matter to start de novo, did the Republic call any witness. The same was the case on 18. 5.2010, 15. 6.2010and14. 7.2010, when I also granted a last adjournment. On 5. 10. 2010 only one witness testified i.e. PW1, P.C. Nelson Kamama who visited the scene on 24. 1.2004 and re-arrested the three accused persons. On 6. 10. 2010, no witness was availed and I reluctantly adjourned it to 29. 11. 2010 when again no witness appeared and I granted another last adjournment. On 1. 2.2011, PW2, Samwel Anduku testified and stated that he was the one who identified the deceased’s body during the post-mortem.

2. The Republic closed its case with only the above evidence on record and it is obvious that the said evidence is not, prima facie, sufficient to warrant the accused persons being put on their respective defences.

3. It is not enough that PW1 arrested the accused persons and PW2 identified the deceased’s body.

4. I note that in the Statement of offence, 8 witnesses were listed and the evidence of PW1 and PW2 needed beefing up for it to reach the threshold required in law. It is strange that afte close to 8 years, the Republic has been unable to call more than the two witnesses above and in the end, I find that the accused persons have no case to answer and they are acquitted accordingly.

5. They shall be released unless they are otherwise lawfully held.

6. Orders accordingly.

Delivered, dated and signed at Kakamega this 13th day of April, 2011.

ISAAC LENAOLA

J U D G E