Republic v Samwel Jonyo Ogweno, Molly Atieno Ogweno & Felix Owino Ogweno [2022] KEHC 27085 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT HOMA BAY

CRIMINAL CASE NO. 27 OF 2018

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

VERSUS

SAMWEL JONYO OGWENO.................................................................1ST ACCUSED

MOLLY ATIENO OGWENO...................................................................2ND ACCUSED

FELIX OWINO OGWENO......................................................................3RD ACCUSED

RULING

1.   Samwel Jonyo Ogweno, Molly Atieno Ogweno and Felix Owino Ogweno are charged with two counts of murder contrary to section 203 as read with section 204 of the Penal Code.

2.   The particulars of the offences are that on the night of 7th and 8th day of July, 2018 at Kobala village, Kawino sub location in Rachuonyo South Sub County within Homa Bay County, murdered Harrison Jonyo Ogeka and Iscah Atieno Jonyo.

3.   The deceased herein died after sustaining burns when their house was set on fire by arsonist(s).

4.   There is no doubt that the house of the couple was deliberately set on fire for a container that was smelling of petrol was retrieved from the family’s well. The issue is who did it.

5.   All material witnesses who were called to testify gave evidence of existing differences between the 1st accused with Harrison Jonyo Ogeka. Joel Owenga Oyonge (PW1) testified that when he found Harrison Jonyo Ogeka in hospital, he told him that he was late for his son, his wife and children had killed him.

6.   The evidence on record does not indicate that he saw the arsonists. He was therefore suspecting them owing to their earlier disagreements. The evidence on record is therefore mere suspicion. Suspicion alone however strong is worthless. The Court of  Appeal in 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.

7.   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.

8.   The Court of appeal in the case of Ramanlal Trambaklal Bhatt vs. 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.

9.   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 persons opt to exercise their constitutional right hereinabove stated, I cannot convict them based on the evidence on record. This therefore means that the prosecution has not established a prima facie case against them. I accordingly acquit each one of them of the offence of murder under section 306 (1) of the Criminal Procedure Code. Each is set at liberty unless if otherwise lawfully held.

DELIVERED AND SIGNED AT HOMA BAY THIS 22ND DAY OF MARCH, 2022

KIARIE WAWERU KIARIE

JUDGE