1. The Accused persons, Bernard Isoe Ndege and Robert Nyandiba, are jointly charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code.
2. At the close of the prosecution case, learned counsel for the prosecution formally closed the case. The Court is now required, pursuant to section 306 of the Criminal Procedure Code, to determine whether the prosecution has established a prima facie case sufficient to place either or both Accused persons on their defence.
3. The governing provision is section 306(1) of the Criminal Procedure Code, which obliges the Court to acquit an accused person where, upon consideration of the evidence adduced, there is no evidence that the accused committed the offence.
4. The applicable test was set out in Bhatt v Republic [1957] EA 332, where the Court held that a prima facie case is one on which a reasonable tribunal, properly directing itself on the law and the evidence, could convict if the accused offered no explanation.
5. At this stage, the Court must not make definitive findings on credibility or weight, but must determine whether there is evidence on each essential ingredient of the offence linking the accused to the crime.
6. For the offence of murder under section 203 of the Penal Code, the prosecution must establish, at least prima facie, the fact and cause of death of the deceased, that the death was caused by an unlawful act or omission, and that the unlawful act or omission was accompanied by malice aforethought. Crucially, there must also be evidence connecting the accused person to the unlawful act that caused death.
7. On the fact and cause of death, the prosecution tendered medical evidence through PW4, who produced the post-mortem report dated 05thOctober 2022. The report attributes the cause of death of Joyce Nyaera Nyamasege to blunt head injury secondary to assault. This evidence was not controverted. The Court is satisfied that the death of the deceased and its unlawful cause were prima facie proved.
8. The central issue, however, is whether the prosecution evidence links either of the accused persons to the fatal assault. None of the six prosecution witnesses testified to having seen either accused inflict the injuries that caused the deceased’s death. The evidence relied upon is entirely circumstantial.
9. PW1 and PW5 testified to an earlier incident in which the 1st Accused allegedly assaulted PW1 with a stone. That incident occurred at a different location from the deceased’s house, and neither witness placed the 1st Accused at the scene of the murder at the material time. PW1 expressly stated that she was not present when the deceased was attacked. PW5 conceded in cross-examination that it was dark and that he could not identify the person who later attacked the deceased.
10. PW2 testified that he found the deceased already injured and candidly admitted that he did not witness the killing and did not know who killed her. While he placed the 1st Accused in the vicinity earlier in the evening, he expressly disowned any knowledge of who inflicted the fatal injuries. His evidence, taken at its highest, raises suspicion but does not amount to evidence connecting the 1st Accused to the actus reus of murder.
11. As regards the 2nd Accused, none of the witnesses placed him at the scene of the crime at the material time. PW1 stated that the 2nd Accused was among many people who gathered after the incident. PW5 expressly stated that he did not see the 2nd Accused on the material day.
12. The investigating officer, PW6, testified that the deceased allegedly had a long-standing land dispute with the 2nd Accused. However, he conceded that no witness statement directly implicated the 2nd Accused in the killing, that no weapon was recovered, that no forensic investigations were conducted, and that the alleged land dispute was reported to him by a village elder who did not record a statement. Suspicion, however strong, cannot found a criminal case. As held in Sawe v Republic [2003] KLR 364, suspicion alone is insufficient to sustain a conviction.
13. It is also statutorily recognised in sections 111 and 119 of the Evidence Act that, while certain facts may in appropriate cases call for an explanation from an accused person, the primary burden of proof in criminal cases rests throughout on the prosecution. Section 111(1) places upon an accused person the burden of proving facts especially within his knowledge or bringing the case within an exception to the law, but expressly preserves the principle that an accused is entitled to an acquittal where the evidence, whether from the prosecution or the defence, creates a reasonable doubt as to guilt. Section 119 permits the Court to presume the existence of facts likely to have happened according to the common course of natural events and human conduct.
14. These statutory provisions do not, however, dilute the settled law on circumstantial evidence. Where the prosecution relies on circumstantial evidence, the inculpatory facts must lead irresistibly to the conclusion that the accused is guilty, must be incapable of explanation upon any other reasonable hypothesis consistent with innocence, and must be free from any co-existing circumstances that would weaken or destroy the inference of guilt. This principle was firmly stated in Republic v Kipkering arap Koske [1949] 16 EACA 135, and reaffirmed by the Court of Appeal in Sawe v Republic (supra), where the Court emphasised that the burden of proving such facts always remains with the prosecution and never shifts to the accused.
15. In the present case, the prosecution evidence discloses, at most, isolated inculpatory facts and suspicions. The chain of circumstantial evidence is fragmented, incomplete, and incapable of supporting an irresistible inference of guilt against either accused person. There exist multiple co-existing circumstances consistent with innocence, including the absence of eyewitness testimony, the lack of forensic or physical evidence, and the investigating officer’s own concessions in cross-examination.
16. To require the Accused persons to be placed on their defence in these circumstances would amount to shifting the burden of proof and compelling them to fill gaps in the prosecution case, contrary to section 306 of the Criminal Procedure Code and Article 50(2)(a) of the Constitution.
17. From the foregoing, this Court finds that the prosecution has failed to establish a prima facie case against either Bernard Isoe Ndege or Robert Nyandiba.
18. Pursuant to section 306(1) of the Criminal Procedure Code, both accused persons are hereby acquitted of the offence of murder.
19. Both Accused persons shall be released forthwith unless otherwise lawfully held.
2. At the close of the prosecution case, learned counsel for the prosecution formally closed the case. The Court is now required, pursuant to section 306 of the Criminal Procedure Code, to determine whether the prosecution has established a prima facie case sufficient to place either or both Accused persons on their defence.
3. The governing provision is section 306(1) of the Criminal Procedure Code, which obliges the Court to acquit an accused person where, upon consideration of the evidence adduced, there is no evidence that the accused committed the offence.
4. The applicable test was set out in Bhatt v Republic [1957] EA 332, where the Court held that a prima facie case is one on which a reasonable tribunal, properly directing itself on the law and the evidence, could convict if the accused offered no explanation.
5. At this stage, the Court must not make definitive findings on credibility or weight, but must determine whether there is evidence on each essential ingredient of the offence linking the accused to the crime.
6. For the offence of murder under section 203 of the Penal Code, the prosecution must establish, at least prima facie, the fact and cause of death of the deceased, that the death was caused by an unlawful act or omission, and that the unlawful act or omission was accompanied by malice aforethought. Crucially, there must also be evidence connecting the accused person to the unlawful act that caused death.
7. On the fact and cause of death, the prosecution tendered medical evidence through PW4, who produced the post-mortem report dated 05thOctober 2022. The report attributes the cause of death of Joyce Nyaera Nyamasege to blunt head injury secondary to assault. This evidence was not controverted. The Court is satisfied that the death of the deceased and its unlawful cause were prima facie proved.
8. The central issue, however, is whether the prosecution evidence links either of the accused persons to the fatal assault. None of the six prosecution witnesses testified to having seen either accused inflict the injuries that caused the deceased’s death. The evidence relied upon is entirely circumstantial.
9. PW1 and PW5 testified to an earlier incident in which the 1st Accused allegedly assaulted PW1 with a stone. That incident occurred at a different location from the deceased’s house, and neither witness placed the 1st Accused at the scene of the murder at the material time. PW1 expressly stated that she was not present when the deceased was attacked. PW5 conceded in cross-examination that it was dark and that he could not identify the person who later attacked the deceased.
10. PW2 testified that he found the deceased already injured and candidly admitted that he did not witness the killing and did not know who killed her. While he placed the 1st Accused in the vicinity earlier in the evening, he expressly disowned any knowledge of who inflicted the fatal injuries. His evidence, taken at its highest, raises suspicion but does not amount to evidence connecting the 1st Accused to the actus reus of murder.
11. As regards the 2nd Accused, none of the witnesses placed him at the scene of the crime at the material time. PW1 stated that the 2nd Accused was among many people who gathered after the incident. PW5 expressly stated that he did not see the 2nd Accused on the material day.
12. The investigating officer, PW6, testified that the deceased allegedly had a long-standing land dispute with the 2nd Accused. However, he conceded that no witness statement directly implicated the 2nd Accused in the killing, that no weapon was recovered, that no forensic investigations were conducted, and that the alleged land dispute was reported to him by a village elder who did not record a statement. Suspicion, however strong, cannot found a criminal case. As held in Sawe v Republic [2003] KLR 364, suspicion alone is insufficient to sustain a conviction.
13. It is also statutorily recognised in sections 111 and 119 of the Evidence Act that, while certain facts may in appropriate cases call for an explanation from an accused person, the primary burden of proof in criminal cases rests throughout on the prosecution. Section 111(1) places upon an accused person the burden of proving facts especially within his knowledge or bringing the case within an exception to the law, but expressly preserves the principle that an accused is entitled to an acquittal where the evidence, whether from the prosecution or the defence, creates a reasonable doubt as to guilt. Section 119 permits the Court to presume the existence of facts likely to have happened according to the common course of natural events and human conduct.
14. These statutory provisions do not, however, dilute the settled law on circumstantial evidence. Where the prosecution relies on circumstantial evidence, the inculpatory facts must lead irresistibly to the conclusion that the accused is guilty, must be incapable of explanation upon any other reasonable hypothesis consistent with innocence, and must be free from any co-existing circumstances that would weaken or destroy the inference of guilt. This principle was firmly stated in Republic v Kipkering arap Koske [1949] 16 EACA 135, and reaffirmed by the Court of Appeal in Sawe v Republic (supra), where the Court emphasised that the burden of proving such facts always remains with the prosecution and never shifts to the accused.
15. In the present case, the prosecution evidence discloses, at most, isolated inculpatory facts and suspicions. The chain of circumstantial evidence is fragmented, incomplete, and incapable of supporting an irresistible inference of guilt against either accused person. There exist multiple co-existing circumstances consistent with innocence, including the absence of eyewitness testimony, the lack of forensic or physical evidence, and the investigating officer’s own concessions in cross-examination.
16. To require the Accused persons to be placed on their defence in these circumstances would amount to shifting the burden of proof and compelling them to fill gaps in the prosecution case, contrary to section 306 of the Criminal Procedure Code and Article 50(2)(a) of the Constitution.
17. From the foregoing, this Court finds that the prosecution has failed to establish a prima facie case against either Bernard Isoe Ndege or Robert Nyandiba.
18. Pursuant to section 306(1) of the Criminal Procedure Code, both accused persons are hereby acquitted of the offence of murder.
19. Both Accused persons shall be released forthwith unless otherwise lawfully held.