Republic v John Chebet Cheboi [2017] KEHC 5892 (KLR)

REPUBLIC  OF  KENYA

IN THE HIGH COURT OF KENYA AT ELDORET

CRIMINAL CASE NO.  62  OF 2012

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

V E R S U S

JOHN CHEBET CHEBOI  ……………….........…………………. ACCUSED

RULING

1. The accused John Chebet Cheboi has been charged with the offence of Murder contrary to Section 203 as read with Section 204 of the Penal Code.  It is alleged that on 1st July 2012 at Marich sub location, Marakwet East District within the Rift Valley province, he murdered David Kipkeu Cheptarus.

2. The accused denied the charges.  In support of its case, the prosecution called three witnesses.  At the close of the prosecution case, learned counsel for the accused Mr. Miyienda elected to make written submissions under Section 306(1)of the Criminal Procedure Code (CPC) while learned prosecuting counsel Ms Oduor chose not to make any submissions at that stage.

3. I have considered the evidence on record and the written submission filed by Mr. Miyienda on 11th November, 2016.  At this stage, the court is required to determine whether the prosecution has established a prima facie case on the basis of which the accused person can be called upon to present his defence.  A prima facie case was defined in Bhatt V Republic (1957) EA 332 at 334as follows;-

“Remembering that the legal onus is always on the prosecution to prove its case beyond reasonable doubt, we cannot agree that a prima facie case is made out if, at the close of the prosecution, the case is merely one

“which on full consideration might possibly be thought sufficient to sustain a conviction”.

This is perilously near suggesting that the court would not be prepared to convict if no defence is made, but rather hopes the defence will fill the gaps in the prosecution case.

Nor can we agree that the question whether there is a case to answer depends only on whether there is

“some evidence, irrespective of its credibility or weight, sufficient to put the accused on his defence”.  A mere scintilla of evidence can never be enough; nor can any amount of worthless discredited evidence”.

4. In this case, I find that the only three witnesses called by the prosecution testified that they did not know how the deceased sustained the injuries which in their view led to his death a week later while undergoing treatment at Kapsowar Mission Hospital. PW1 recalled that she sold changaa to the deceased at around 11 p.m on 1st July, 2012; that they quarreled briefly with the accused after which the two parted and went their different ways.  PW2 only learnt that the deceased who was her son had sustained injuries on 2nd July, 2012 night while PW3 was called to a place where he found the deceased lying in a pool of blood.  None of them saw his assailants.

5. For the offence of murder to be established, the prosecution must prove three key elements of the offence; that is;

(i) the death of the deceased

(ii) that the death of the deceased was caused by the accused person’s unlawful act or omission; and

(iii) That when committing the unlawful act or omission, the accused person had malice aforethought.

6. As must be already clear by now, the prosecution in this case failed to prove any of the above essential elements of the offence of murder.

Besides not establishing that the accused was the person who unlawfully inflicted injuries on the deceased on the night in question, the prosecution did not also avail to the court medical evidence in the form of a post-mortem report to establish the death of the deceased and the cause of his death.

7. In view of the foregoing, I am satisfied that the prosecution has failed to prove that the accused herein committed the offence as charged.  It would therefore be an exercise in futility to put the accused person on his defence.

8. In the premises, it is my finding that the accused person has no case to answer.  I accordingly record a finding of not guilty and acquit him under Section 306 (1) of the Criminal Procedure Code.  The accused shall be set free forthwith unless otherwise lawfully held.

It is so ordered.

C. W. GITHUA

JUDGE

DATED, SIGNEDand DELIVEREDatELDORETthis 27th day of February, 2017

In the presence of:-

The accused

Ms. Kigesi for state

Mr. Miyienda absent