Republic v Bonface Owuor Ondere [2018] KEHC 1190 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT HOMA BAY

CRIMINAL CASE NO.4 OF 2015

REPUBLIC ………………..…….………………….……. PROSECUTOR

VERSUS

BONFACE OWUOR ONDERE ………………………………. ACCUSED

RULING

[1]The accused, BONIFACE OWUOR ONDERE, was charged with murder contrary to Section 203 as read with Section 204 of the Penal Code.  It was alleged that on the 24th January 2015, at Riat market (Panama Bar), Kanyikela location, Ndhiwa District of Homa Bay County, murdered Kanut Tsinjia Aurah.  He first appeared in court on 28th January 2015, but plea was taken on 10th February 2015.

[2]It was not until 22nd May 2017, that hearing of the case commenced with the prosecution calling one witness MARY OWAKO ODUNDA (PW1) before applying for an adjournment and thereafter continuing with the same trend of applying for adjournments for one reason or the other.

A “last adjournment” was granted by the court on 22nd January 2018, but this was not heeded as the case did not proceed on 23rd April 2018 and on the 27th June 2018, when it was slated for hearing.

[3]The next hearing date was set for 3rd October 2018, when the prosecution did not avail the remainder of its witness on the basis that they were not bonded as they had re-located on completion or termination of their employment.

An application by the prosecution for yet another adjournment was vehemently opposed by the defence.

The objection was sustained by the court which therefore declined the request for adjournment.

[4]The prosecution indicated that it had no more witnesses to call as they were not present and left the matter to the court thereby implying that it had closed its case with only one witness.  It therefore became obligatory for the court to render a ruling on whether a “prima facie”case has been set out against the accused to warrant placing him on his defence.

[5]A “prima facie” case is one in which a reasonable court properly directing its mind to the law and the evidence before it could convict if no evidence is led by the defence.

Thus, the evidence adduced at the close of the case for the prosecution must not only be sufficient but also credible enough to establish the material ingredients of the offence facing the accused.

[6]The sole prosecution witness (PW1) testified that the deceased was her employee in her bar known as Panama Bar and on the material date he was on duty when she gave him a telephone number given by a certain lady for him to call her.  He then left the bar accompanied by one Christine.  The bar closed at 11. 00p.m.without any fracas having occurred therein that night.

[7]It was further the testimony of PW1, that she did not know a person called Boniface Owuor and could not tell whether or not he was in court.  She reiterated that there was no fracas in her bar on the material night and when it was closed she went to her home.

[8]From all the foregoing, it was clear that PW1 cleared any suspicion of a fracas having occurred in her bar and any suspicion of the accused having been in her bar on the material night let alone being involved in a fracas therein.  It was also clear that the witness did not know or was not familiar with a person called Boniface Owuor and could not tell whether or not he was in court.

[9]If the alleged Boniface Owuor was the accused herein whose name is Boniface Owuor Ondere, then he was a person unknown to the witness (PW1) and if he was suspected of having murdered the deceased, then the witness did not know anything about the offence and how it occurred.

[10]It would follow that the evidence so far led against the accused by the prosecution is incapable of establishing the material ingredients of the charge against the accused.  It is thus incapable of establishing a “prima facie” case warranting that the accused be placed on his defence.

It is therefore the finding of this court that the accused has no case to answer and is hereby acquitted of the offence.  He shall forthwith be set at liberty unless otherwise lawfully held.

Ordered accordingly.

J.R. KARANJAH

JUDGE

04. 10. 2018

[Read and signed this 4thday of October, 2018]