State v Omunyi & 11 others [2022] KEHC 589 (KLR)

State v Omunyi & 11 others (Criminal Case E004 of 2020) [2022] KEHC 589 (KLR) (13 June 2022) (Ruling)

Neutral citation: [2022] KEHC 589 (KLR)

Republic of Kenya

In the High Court at Siaya

Criminal Case E004 of 2020

RE Aburili, J

June 13, 2022

Between

State

Prosecution

and

Erick Ochieng Alias Owila Omunyi

1st Accused

Peter Onyango Alias Onyango Nyawanda

2nd Accused

Vincent Nyawanda Alias Nelly Yoma

3rd Accused

Erick Oduor Alias Omulo Otunga

4th Accused

David Odhiambo Alias Jalago Lazaro

5th Accused

Elvis Otieno Obonyo

6th Accused

Odhiambo Lazaro

7th Accused

Dan Ajimba

8th Accused

Fanuel Nyawanda

9th Accused

Kelvin Odongo

10th Accused

John Felix Otieno

11th Accused

Charles Ngonde Nyawanda

12th Accused

Ruling

1. The 12 accused persons herein are all jointly 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 7th day of April, 2019 at Chamakwaro village in Ndigwa sub location, in Rarieda Sub County within Siaya County, jointly with others not before court they murdered Clinton Owino Omoke.

3. The accused persons pleaded not guilty to the charge. The prosecution has called 9 witnesses who have testified against the 12 accused persons herein.

4. The defence counsel filed written submissions urging this court to acquit the accused persons on account that the prosecution has not established a prima facie case to warrant the accused persons to be placed on their defence.

5. I have considered the evidence adduced by the 9 prosecution witnesses and the submissions by counsel for the accused on no case to answer.

6. I am alive to the legal principle that the burden of proof lies on the prosecution to prove its case against the accused person and the standard of proof is beyond reasonable doubt.

7. That burden does not shift throughout the trial. However, at this stage, the Prosecution is only expected to establish a prima facie case against the accused persons.

8. The defence have attacked the evidence adduced by Prosecution witnesses, on the alleged date and time of death of the deceased and asserted that the said evidence is contradictory.

9. I have considered all the above and the fact that at this stage, the standard of proof is not that of beyond reasonable doubt for the court to determine the guilt or otherwise of the accused persons.

10. Further, that having heard the evidence adduced by the Prosecution witnesses, should I be of the opinion that a prima facie case is established against the accused persons, I should not delve deep into merits of the evidence so far adduced as that would prejudice the accused persons.

11. Having said that, I am satisfied that a prima facie case has been established against all the 12 accused persons, who are hereby found to have a case to answer for the Murder of the deceased Clinton Owino Omoke.

12. The 12 accused persons are hereby placed on their defence in accordance under Section 306 (2) of the Criminal Procedure Code.

13. As counsel, Mr. Ayayo for 1st to 11th accused persons was before court only in the morning and was granted leave to attend to a patient, the provision of section 306(2) of the Criminal Procedure Code and Article 50(2) of the Constitution shall be read out to the 12 accused persons in the presence of both their counsel on during the defence hearing.

14. Orders accordingly.

DATED, SIGNED AND DELIVERED AT SIAYA, THIS 13TH DAY OF JUNE 2022R.E. ABURILIJUDGEPage 2 of 2