Republic v Mwa [2022] KEHC 14697 (KLR)

Republic v Mwa (Criminal Case 24 of 2017) [2022] KEHC 14697 (KLR) (2 November 2022) (Judgment)

Neutral citation: [2022] KEHC 14697 (KLR)

Republic of Kenya

In the High Court at Homa Bay

Criminal Case 24 of 2017

KW Kiarie, J

November 2, 2022

Between

Republic

Prosecution

and

Fred Ochieng Mwa

Accused

Judgment

1. Fred Ochieng Mwa is charged with an offence of murder contrary to section 203 as read with section 204 of the Penal Code.

2. The particulars of the offence are that on the 19th day of July, 2017 at Luanda Trading Centre, Mbita Sub County of Homa Bay County, murdered Benard Odhiambo Otieno.

3. The deceased was stabbed and he later succumbed to the injuries. The accused was implicated as the culprit.

4. In his defence the accused contended that when he returned from the purchase of his barber shop items, he found the deceased lying dead in front of his shop. A mob attacked him.

5. The issues for determination are:a)Whether accused caused the death of the deceased or not; andb)Whether the offence of murder was proved.

6. None of the witnesses who were called by the prosecution witnessed the incident. Though Pasaka Okinyi Odeng (PW1) testified that when he went to the scene he found the accused, during cross examination he conceded that in his statement to the police he only stated that his role was the identification of the deceased for the purpose of post mortem.

7. Zachary Odero Ogola (PW4) in his evidence said that the deceased was his colleague in a carpentry shop. His evidence was that when the accused found him working at a corridor he was angry. He complained to the landlord who asked him to tell the deceased to call him upon his return. When he was attracted by noises, he saw people running away and the deceased was lying down. He also saw the accused running away. He heard a lady called Everlyne implicate the accused as the assailant.

8. Everlyne Audi (PW6) testified that she did not witness the incident. This witness was declared hostile and her statement was produced. In her statement to the police she identified the person who stabbed the deceased as Charo. She said she witnessed the entire incident. When a witness is declared hostile, the evidence has very little weight if any. The Court of Appeal in Batala v Uganda [1974] E.A. 402 the court at page 405 said:The giving of leave to treat a witness as hostile is equivalent to a finding that the witness is unreliable. It enables the party calling the witness to cross-examine him and destroy his evidence. If a witness is unreliable, none of his evidence can be relied on, whether given before or after he was treated as hostile, and it can be given little, if any, weight.

9. Her evidence therefore, is unreliable and it also does not disclose who Charo is.

10. The evidence against the accused is that of suspicion. The Court of Appeal in the case of Sawe v Republic [2003] KLR 354, the Court of appeal held as follows:Suspicion, however strong, cannot provide the basis of inferring guilt which must be proved by evidence beyond reasonable doubt.I therefore find that the evidence against the accused did not go beyond suspicion.

11. The upshot of the foregoing is that the prosecution has not proved its case against the accused. I accordingly acquit him of the offence of murder and set him free unless if otherwise lawfully held.

Delivered and signed at Homa Bay this 2nd day of November, 2022KIARIE WAWERU KIARIEJUDGE