Republic v Ongang [2023] KEHC 19206 (KLR)

Republic v Ongang (Criminal Case E037 of 2022) [2023] KEHC 19206 (KLR) (27 June 2023) (Ruling)

Neutral citation: [2023] KEHC 19206 (KLR)

Republic of Kenya

In the High Court at Homa Bay

Criminal Case E037 of 2022

KW Kiarie, J

June 27, 2023

Between

Republic

Prosecutor

and

Samwel Ojowi Ongang

Accused

Ruling

1. Samwel Ojowi Ongang 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 5th day of July 2022 in Ndhiwa Sub County within Homa Bay County, murdered Lavender Awuor.

3. The deceased was murdered and her body was discovered in a sugar plantation on July 10, 2022 after disappearing from home on a date that is not clear from the evidence.

4. Samwel Ojowi Ongang, the accused is linked to the offence by the evidence COO (a minor) who testified that he saw the accused strangle the deceased and he recognized him.

5. According to this witness (PW1), while he was with Elvis, he saw a man he identified as the accused strangling a child. His evidence was that the incident took place at a distance of about 21 paces from where he was. The child was strangled in a bush which was taller than him. He was, at the time of the incident standing at the road. He said his statement was recorded for him by his father and that he did not go to the police.

6. In spite of PW1 saying that he was with Elvis and who witnessed the incident, Elvis Omondi (PW4) testified that he did not witness the incident. It was PW1 who informed them what he had witnessed and they thought he was lying. He informed them that the child was strangled on the road and he did not tell them who the culprit was.

7. PW1 in his evidence gave two versions as to where the child was strangled; one was inside some bush and the other was on the road.

8. The issue of credibility of this witness arise due to the two versions of the incident and due to the obvious contradictions in his evidence. The Court of Appeal in the case of Ndungu Kimanyi vs Republic [1979] KLR 283 (Madan, Miller and Potter JJA) held:"The witness in a criminal case upon whose evidence it is proposed to rely should not create an impression in the mind of the court that he is not a straightforward person, or raise a suspicion about his trustworthiness, or do (or say) something which indicates that he is a person of doubtful integrity, and therefore an unreliable witness which makes it unsafe to accept his evidence."

9. The purported identification parade by PW1 and subsequent identification of the accused in court is rendered worthless by the conduct of the police. According to his evidence in court, before he identified the accused he was pointed out to him by the police.

10. Has the prosecution established a prima facie case against any of the accused? In the Black’s Law Dictionary, 10th Edition prima facie case is defined as follows:"Prima facie case. (1805) I. The establishment of a legally required rebuttable presumption. 2. A party's production of enough evidence to allow the fact-trier to infer the fact at issue and rule in the party's favor.

11. The Court of appeal in the case of Ramanlal Trambaklal Bhatt vs R[1957] EA 332 at 334 and 335, defined prima facie case as follows:"It may not be easy to define what is meant by a “prima facie case”, but at least it must mean one on which a reasonable tribunal, properly directing its mind to the law and the evidence could convict if no explanation is offered by the defence."

12. Article 50 (2) (i) of the Constitution of Kenya provides:"(2)Every accused person has the right to a fair trial, which includes the right-(i)to remain silent, and not to testify during the proceedings;If the accused opts to exercise his constitutional right hereinabove stated, I cannot convict him based on the evidence on record. This therefore means that the prosecution has not established a prima facie case against him. I accordingly acquit him of the offence of murder under section 306 (1) of the Criminal Procedure Code. He is set at liberty unless if otherwise lawfully held.

DELIVERED AND SIGNED AT HOMA BAY THIS 27TH DAY OF JUNE, 2023KIARIE WAWERU KIARIEJUDGE