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Fred Nunda and Joshua Nyamweya the accused herein are charged with the offence of murder contrary to section 203 as read with 204 of the penal code . The particulars of the offence were that on the 15 th day of may 2023 at Kisii Town in Kitutu central Sub County , they jointly with others murdered one Justin Omare.
The accused persons denied the charge and the matter proceeded to hearing . Prosecution called 3 witnesses and closed it’s case .
At this stage court is enjoined to satisfy it’s self that prosecution has established a prima face case to warrant accused being placed on their defence .
I have carefully considered prosecutions’ case and the submissions .
In the case of RAMANLAL BHAT -VS- REPUBLIC [1957] EA 332. It was held that ‘’ At that stage of the proceedings the trial court does not concern itself to the standard of proof required to convict which is normally beyond reasonable doubt. The weight of the evidence however must be such that it is sufficient for the trial court to place the accused to his defence.”
There is sufficient evidence that the deceased was murdered as per the post mortem report produced by PW2 which indicates that the cause of death was severe head injury due to subdural haematoma due to blunt force trauma consistent with assault . The role of PW1 was only to identify the body. PW3 the investigating officer said that Accused were placed at the scene but the evidence of the eye witnesses was not called . The evidence of Pw3 is thus heresay . In Republic -Vs- Wachira (1975) EA 262 the court cautioned that an accused person should only be acquitted at this stage only if:-
“There is no evidence of a material ingredient or if the prosecution has been so discredited and the evidence of their witnesses so incredible and untrustworthy that no reasonable tribunal properly directing itself could safely convict”
Accused were not placed at the scene of crime and thus considering the nature of the offence herein and the said evidence , if accused persons herein are placed on their defence and opt to remain silent during defence then, neither this court not any reasonable tribunal can convict them . The evidence on record is insufficient to place them on their defence .
I find that accused have no case to answer and I proceed to acquit each of them under Section 306 (1) CPC . Accused are set free unless otherwise law fully held .
T.A ODERA
JUDGE
24.10.25
DELIVERED VIRTUALLY VIA TEAMS PLATFORM IN THE PRESSNCE OF ACCUSED . MR OCHOKI FOR 1 ST ACCUSED , MR WESONGA FOR THE 2 ND ACCUSED , MR KOIMA FOR PROSECUTION , MR GEORGE MORARA & MR BONUKE WATCHING BRIEF FOR THE FAMILY OF THE DECEASED AND COURT ASSISTANT KIPCHIRCHIR .
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Fred Nunda and Joshua Nyamweya the accused herein are charged with the offence of murder contrary to section 203 as read with 204 of the penal code . The particulars of the offence were that on the 15 th day of may 2023 at Kisii Town in Kitutu central Sub County , they jointly with others murdered one Justin Omare.
The accused persons denied the charge and the matter proceeded to hearing . Prosecution called 3 witnesses and closed it’s case .
At this stage court is enjoined to satisfy it’s self that prosecution has established a prima face case to warrant accused being placed on their defence .
I have carefully considered prosecutions’ case and the submissions .
In the case of RAMANLAL BHAT -VS- REPUBLIC [1957] EA 332. It was held that ‘’ At that stage of the proceedings the trial court does not concern itself to the standard of proof required to convict which is normally beyond reasonable doubt. The weight of the evidence however must be such that it is sufficient for the trial court to place the accused to his defence.”
There is sufficient evidence that the deceased was murdered as per the post mortem report produced by PW2 which indicates that the cause of death was severe head injury due to subdural haematoma due to blunt force trauma consistent with assault . The role of PW1 was only to identify the body. PW3 the investigating officer said that Accused were placed at the scene but the evidence of the eye witnesses was not called . The evidence of Pw3 is thus heresay . In Republic -Vs- Wachira (1975) EA 262 the court cautioned that an accused person should only be acquitted at this stage only if:-
“There is no evidence of a material ingredient or if the prosecution has been so discredited and the evidence of their witnesses so incredible and untrustworthy that no reasonable tribunal properly directing itself could safely convict”
Accused were not placed at the scene of crime and thus considering the nature of the offence herein and the said evidence , if accused persons herein are placed on their defence and opt to remain silent during defence then, neither this court not any reasonable tribunal can convict them . The evidence on record is insufficient to place them on their defence .
I find that accused have no case to answer and I proceed to acquit each of them under Section 306 (1) CPC . Accused are set free unless otherwise law fully held .
T.A ODERA
JUDGE
24.10.25
DELIVERED VIRTUALLY VIA TEAMS PLATFORM IN THE PRESSNCE OF ACCUSED . MR OCHOKI FOR 1 ST ACCUSED , MR WESONGA FOR THE 2 ND ACCUSED , MR KOIMA FOR PROSECUTION , MR GEORGE MORARA & MR BONUKE WATCHING BRIEF FOR THE FAMILY OF THE DECEASED AND COURT ASSISTANT KIPCHIRCHIR .
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