Republic v Otieno [2023] KEHC 23547 (KLR)

Republic v Otieno (Criminal Case 19 of 2018) [2023] KEHC 23547 (KLR) (13 October 2023) (Ruling)

Neutral citation: [2023] KEHC 23547 (KLR)

Republic of Kenya

In the High Court at Kisumu

Criminal Case 19 of 2018

RE Aburili, J

October 13, 2023

Between

Republic

Prosecutor

and

Joseph Ayomo Otieno

Accused

Ruling

1. The accused person herein is Joseph Ayomo Otieno. He is charged with the offence of Murder contrary to section 203 as read with section 204 of the Penal Code.

2. Particulars of the offence are that on the night of 24th – 25th July 2018, at around 1800 hours at Migosi Estate, Kisumu East Subcounty, within Kisumu County, jointly with others not before court, unlawfully murdered Beverlyine Akinyi Otieno alias ‘Cassie Akinyi.’

3. The accused denied committing the offence and the prosecution have called 9 witnesses who have testified.

4. The defence counsel and prosecution counsel submitted on whether the accused has a case to answer or not.

5. According to the defence counsel, no prima facie case had been established to warrant placing the accused on his defence.

6. That there are a lot of gaps in the prosecution’s case as it is not ascertainable as who really committed the murder.

7. That the accused’s intention to commit the murder, malice aforethought had not been established.

8. That each witness spoke of another victim called Evans and that no witness saw the accused with the deceased, but that the evidence was that the deceased was with Evans, another victim.

9. That the forensic report only identified DNA for Evans not of the accused. Further that there was an attempt to clean up the bloody scene but the accused was not placed at the scene.

10. In addition, that nothing is said of the others who allegedly jointly committed the murder with the accused. That the body of the deceased was found in the vehicle of Evans.

11. On the part of the prosecution, it was submitted that they relied on evidence on record. That the accused murdered the deceased and wanted to dispose of her body and that he also attacked PW 1 and seriously injured him.

12. That malice aforethought was proved against the accused.

13. Having considered the evidence tendered by the 9 prosecution witnesses and submissions by both parties’ counsel, the question at this stage is whether the prosecution has established a prima facie case against the accused herein to warrant him being placed on his defence.

14. The burden of proof lies on the prosecution throughout the trial, to prove the guilt of the accused beyond reasonable doubt.

15. However, at this stage, the prosecution is not expected to have proved the guilt of the accused person beyond reasonable doubt.

16. A prima facie case is not a case that must necessarily succeed and is sufficient to warrant placement of the accused person on his defence.

17. However, the court is not expected to delve deep into the evidence adduced to determine the guilt or otherwise of the accused if, upon reviewing evidence so far adduced, it is of the opinion that a prima facie case has been established against the accused person.

18. The issue of proof of malice aforethought cannot be determined at this stage.

19. In this case, I have examined the testimonies of PW 4 who was also a victim of an attack at the scene where the deceased Beverlyne Akinyi was found to have been brutally killed.

20. I have also perused the testimonies of the various witnesses who were not at the scene and the Investigating Officer’s evidence and I am persuaded that a prima facie case has been established against the accused person.

21. Accordingly, I find and hold that the accused person herein Joseph Ayomo Otieno has a case to answer for the alleged murder of Beverlyne Akinyi Otieno and he is placed on his defence. His rights under the provisions of article 50 (2) (j) (k) (l) of the Constitution as read with section 306 (2) of the Criminal Procedure Code are hereby explained to the accused and reasons why this file was recalled from October 17, 2023 to today following a notice issued on October 11, 2023 which is on the file herein.

22. I so order.

DATED, SIGNED AND DELIVERED AT KISUMU THIS 13TH DAY OF OCTOBER, 2023. R. E. ABURILIJUDGE