Republic v Robert Ochieng Ogallo [2022] KEHC 2398 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT HOMA BAY

CRIMINAL CASE NO. 9 OF 2018

REPUBLIC..........................................................................PROSECUTOR

VERSUS

ROBERT OCHIENG OGALLO..............................................ACCUSED

RULING

1.   Robert Ochieng Ogallo 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 night of 17th & 18th day of February, 2018, at Kanam B location, Rachuonyo North Sub County within Homa Bay County, murdered Jackline Adhiambo Ogallo.

3.  The evidence of the witnesses that were called did not link the accused to the offence of murder of the deceased herein.

4.  In his evidence, Daniel Omondi Apiyo (PW1) testified that when the body of the deceased was discovered and he went to the home, he did not find the accused at the home.  He further told the court that the accused was a fellow fisherman. This alone would not form a basis for investigation against the accused. How many villagers were not at the home?  We equally know that suspicion alone however strong cannot be a basis for concluding that one is guilty. The Court of Appeal in the case of Sawe vs. Republic[2003] KLR 354, held as follows:

Suspicion, however strong, cannot provide the basis of inferring guilt which must be proved by evidence beyond reasonable doubt.

5.   After considering the evidence on record, the question is whether the prosecution has establish a prima facie caseagainst the accused person.In the Black’s Law Dictionary, 10th Editionprimafacie 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.

6.   The Court of appeal in the case of Ramanlal Trambaklal Bhatt v. R [1957] E.A 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.

7.   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;

In the instant case, if the accused person opts to exercise his constitutional right hereinabove stated, I cannot enter a conviction based on the evidence on record. This therefore means that the prosecution has failed to establish 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 15TH DAY OF FEBRUARY, 2022

KIARIE WAWERU KIARIE

JUDGE