Republic v Kombo [2022] KEHC 11458 (KLR)

Republic v Kombo (Criminal Case 14 of 2016) [2022] KEHC 11458 (KLR) (2 June 2022) (Ruling)

Neutral citation: [2022] KEHC 11458 (KLR)

Republic of Kenya

In the High Court at Mombasa

Criminal Case 14 of 2016

A. Ong’injo, J

June 2, 2022

Between

Republic

Prosecutor

and

Chirungu Sombo Kombo

Accused

Ruling

1. The accused Chirungu Sombo Kombo is charged with the offence of murder Contrary to section 203 as read with section 204 of the PenalCode.

2. Particulars are that Chiringu Sombo Kombo on March 14, 2016 at Milingo Village, Vigurungani location within Kwale County murdered Mchombo Sombo.

3. The prosecution closed its case after failing to avail witnesses who were said to brothers of the accused and the deceased and who were incorporative and had relocated from home to avoid being bonded to attend court as witnesses.

4. PW 1 – Dr. Ahmed Mukuche Juma Hassan produced postmortem report prepared by Dr. Edwin Gathendu at Kinango Sub-County Hospital mortuary on March 13, 2016 in which he was of the opinion that cause of death was severe head injury with primary and secondary brain injury due to trauma by a sharp object.

5. PW 2 the father of the deceased and the accused testified that he had left his sons home where visitors had come and that at night he heard noise and when he went to where noise came from he found it was at his sons home and a child he found at the home told him the deceased had been cut. When he followed the deceased to the hospital he didn’t find anyone. When he went to the police station he learnt his son had died. He said he didn’t see accused cut the deceased.

6. PW 3 former OCS Vigurungani Police Station testified that he received report of a person who had been cut at 11. 00pm. He advised that he should be rushed to hospital but when he followed he found the person had succumbed to the injuries. He said the deceased had cuts on the head, legs and hands.The body was transferred to the Kinango Hospital mortuary where postmortem was done after photographs taken.

7. PW 3 was informed the assailant was the deceased persons brother the accused herein but he had disappeared. That the accused was later apprehended by members of public and escorted to the police station and he was charged.

8. From the evidence of the 3 prosecution witnesses it is apparent that there is no eye witness to the murder of the deceased as the father of the deceased – PW 2 denounced the statement that he wrote at the police station and the daughter of the deceased whom PW 2 said was being married and who was the reason visitors came to their home didn’t record a statement.

9. The sons of PW 2 and brothers of the deceased and the accused who recorded statements as eye witnesses have also failed to attend court since 2016 and as much as there is strong suspicious accused caused the death of his brother he cannot be placed on defence as there is no evidence to warrant him being placed on defence.

10. Accused person is therefore acquitted under section 210 Criminal Procedure Code for no case to answer.

DATED, SIGNED AND DELIVERED IN OPEN COURT THIS 02TH DAY OF JUNE 2022HON. LADY JUSTICE A. ONG’INJOJUDGEIn the presence of:-Ogwel- Court AssistantMs. Kambaga for StateMr. Otieno for the AccusedAccused – Present in personHON. LADY JUSTICE A. ONG’INJOJUDGE