Republic v Clinton Odeya Inyange [2022] KEHC 12456 (KLR)

Republic v Clinton Odeya Inyange (Criminal Case 32 of 2021) [2022] KEHC 12456 (KLR) (8 July 2022) (Ruling)

Neutral citation: [2022] KEHC 12456 (KLR)

Republic of Kenya

In the High Court at Vihiga

Criminal Case 32 of 2021

WM Musyoka, J

July 8, 2022

Between

Republic

Prosecution

and

Clinton Odeya Inyange

Accused

Ruling

1. The accused person is charged with the murder of Ignitius Aguva. The particulars are that between May 25, 2014 and May 26, 2014, at an unknown time, at Mbihi Sub-Location, Wamulama Location within Vihiga County, he murdered the said person.

2. He denied the charge and six witnesses testified. PW1, Oscar Mwanga Kehidi, was the Assistant Chief of the area. He was informed of the discovery of the body of the deceased. He did not know who killed the deceased. PW2 was a village elder who participated in the arrest of the accused. PW3 was the grandmother of the deceased, and was having custody of the boy on May 25, 2014. She left him at home, but when she came back he was not at home. He had gone missing. She was informed the next day of the discovery of the body. She said she did not see the person who killed the deceased. PW4 was informed of the disappearance of the deceased. He heard the following day of the discovery of the body. PW5, the grandfather of the deceased, was among those who identified the body for post mortem purposes. PW6 was the father of the deceased. He was informed of the death on May 26, 2014.

3. None of the six prosecution witnesses had seen the accused kill or assault the deceased. Indeed, none of them testified to seeing the accused person with the deceased on May 25, 2014 or May 26, 2014. The only reason he is linked to the murder is suspicion that he was a member of a cult. PW1, PW3 and PW4 talked of books, found in his possession, which suggested that the accused had a pact with the devil, Lucifer, to kill and deliver people to him. PW3 also talked of a chain with magical powers, which the accused wore, and which the witness threw into a toilet. The books in question were marked for identification. But they were never produced as exhibits as the police officer who investigated the case never testified, as the prosecution closed its case prematurely, for lack of witnesses.

4. The case herein is not built on direct evidence nor on circumstantial evidence. There is no evidence that brings the accused and the deceased together at the time the deceased disappeared on May 25, 2014 and the following day when the body was found. Nothing incriminating was found on the accused. The only thing the prosecution relies on are those materials linking him to cultism, which in any event, were not produced in evidence. This is a case built on suspicion only. Yet suspicion cannot found a basis for a conviction, however, strong the suspicion might be. See Sawe vs Republic (2003) KLR 364 (Kwach, Lakha & O’Okubasu JJA) and Republic vs Leshan ole Sapor(2006)eKLR (Kimaru J).

5. Consequently, I am not persuaded that the prosecution has adduced prima facie evidence upon which I can require the accused person to be put on his defence. I hereby acquit him of the murder of Ignitius Agavi. If he is still in remand custody, he shall be set free, unless he is otherwise lawfully held.

RULING DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA THIS ……..........8th.....................… DAY OF …………July...............…………. 2022W M MUSYOKAJUDGEMr. Erick Zalo, Court Assistant.Ms. Kagai. Instructed by the Director Public Prosecution, for the RepublicClinton Odeya Inyange, the accused, in person2