Republic v Vincent Owino Juma [2017] KEHC 2813 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISUMU

CRIMINAL MURDER CASE NO. 23 OF 2014

REPUBLIC…………………………….…………………PROSECUTOR

VERSUS

VINCENT OWINO JUMA…….………………………………ACCUSED

RULING

VINCENT OWINO JUMA, the accused herein is charged with the murder contrary to Section 203 as read with Section 204 of the Penal Code.  The particulars are that on the night of 15th and 16th March, 2014 at Kabongo village in Nyando District within Kisumu County murdered MOUREEN ACHENG ATIENO.

The prosecution summoned a total of 8 (eight) witnesses in support of their case. When the matter came up for hearing on 14th June 2017; Ms. Osoro, learned counsel for state applied for an order:

THAT this Honourable Court be pleased to admit in evidence the statement of an eye witness, one Teresa Ajwang, who died on 2nd September 2016 as shown by a certificate of death, marked PEXH. 5.

Mr. Indimuli, learned counsel for the accused opposed the application on the grounds that he will not have an opportunity to test the veracity of the statement and that accused will therefore be greatly prejudiced.

According to section 33 of the Evidence Act, statements, written or oral of admissible facts made by a person who is dead or who cannot be found or who has become incapable of giving evidence or whose attendance cannot be procured without an amount of delay or expense which in the circumstance of the case appears to the court unreasonable are themselves admissible in the following cases–

(a) when the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question and such statements are admissible whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question;

The germane element of the law as stated hereinabove is that the statement must relate to the death of the person making the statement and not of any other person.

In the case ofMohamed Warsama v R.(1956) 23 EACA 576, the deceased had made a series of dying declarations in which he had stated the cause of death of another person and the question was whether that part of the dying declaration that identified another person was admissible. The court held that a dying declaration has to relate to the cause and or circumstances of the death of the maker, not of other people.

From the foregoing; I have come to the conclusion that the application made on behalf of the state to admit in evidence the statement of an eye witness to the death of the deceased in this case is not supported by law and is therefore disallowed.

DATED AND DELIVERED THIS…..……12th.......DAY OF……………October…….....2017

T. W. CHERERE

JUDGE

Read in open court in the presence of-

Court Assistant     - Felix

Accused    - Present

Counsel for Accused   - N/A

Counsel for the State  - Ms. Wafula