1. Accused is charged with the offence of murder contrary to section 203 as read with 204 of the Penal Code.
2. The particulars of the charge are that on the 29th June, 2022 at Keera village, Ritembu Sub-location in Magena Location, Kenyenya Sub-County within Kisii County jointly with others not before court murdered JOSPHAT MOYOMBA NYABUTO.
3. Prosecution called 4 witnesses that is Frankline Ogachi (Pw1), Naomi Nyanchera Osugo (Pw2), Pw4 Dr Monda Evans performed post mortem on the body of the deceased and opined that the cause of death was cerebral vascular accident due to secondary to severe heard injury following assault by a sharp object. Pw3 Corporal Nicholas Gikundi investigated the case .
4. I have carefully considered prosecutions case and the law . at this stage the court is to satisfy its self that a prima face case with has been established against accused. In the case of of RAMANLAL BHAT -VS- REPUBLIC [1957] EA 332. 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.”
5. There is evidence that the deceased was murdered . The issue for determination is who murdered him?
6. Pw2 received said she received information form their worker Jared that they had arrested a thief and she in turn woke up her husband PW1 and gave him that information. That was her only role herein .
7. Pw3 Corporal Nicholas Gikundi investigated the case .and one Gerald a bar attendant at the bar of PW1 and PW2 informed him that Henry and Thomas were involved in the incident . On cross- examination, he said Gerald was a witness herein but the said gerald was not called to tell the court what he saw. Gerald the bar attendant who allegedly witnessed the incident and participated in arresting deceased was not called to testify . This court can only presume that had he been called then his evidence would have been adverse to prosecutions case . Pw1 said he arrived at the scene and found the crowd attacking deceased and he intervened . he said he saw accused and Albert Oigara at the scene w at the scene while armed with panga and rungus and accused told him that he was following their stolen cows on cross examination he said he did not see Thomas Oigara at the scene or assaulting the deceased . The said contradiction goes to the root of his testimony. The incident occurred at around mid night and Pw1 did not say how he identified accused , whether the scene was lit and the intensity of the light and how long he spoke with accused , in what language or the desription of the clothes he was wearing . In the case of Republic v Turnbull (1971) QR 227 useful guidelines in so far as identification / recognition at night is concerned were issued . The court held that :
“... The Judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. How long did the witness have with the Accused under observation? At what distance? In what light? Was the observation impeded in any way....? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused? how long elapsed between the original observation and the subsequent identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and his actual appearance?.... Recognition may be more reliable than identification of a stranger but even when the witness is purporting to recognize someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made.”
8. It has emerged that this was a case of mob justice and the role played by accused is not clear and the conditions in the said R vs Turnbull case have not been satisfied . If accused opts to remain silent during his defence then this court cannot convict him based on the evidence on record . It is doubtful whether accused was at the scene . I find that accused was not properly placed at the scene and the evidence on record is insufficient to place him on his defence . He thus has no case to answer and I proceed to acquit him under Section 306 (1) CPC .
2. The particulars of the charge are that on the 29th June, 2022 at Keera village, Ritembu Sub-location in Magena Location, Kenyenya Sub-County within Kisii County jointly with others not before court murdered JOSPHAT MOYOMBA NYABUTO.
3. Prosecution called 4 witnesses that is Frankline Ogachi (Pw1), Naomi Nyanchera Osugo (Pw2), Pw4 Dr Monda Evans performed post mortem on the body of the deceased and opined that the cause of death was cerebral vascular accident due to secondary to severe heard injury following assault by a sharp object. Pw3 Corporal Nicholas Gikundi investigated the case .
4. I have carefully considered prosecutions case and the law . at this stage the court is to satisfy its self that a prima face case with has been established against accused. In the case of of RAMANLAL BHAT -VS- REPUBLIC [1957] EA 332. 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.”
5. There is evidence that the deceased was murdered . The issue for determination is who murdered him?
6. Pw2 received said she received information form their worker Jared that they had arrested a thief and she in turn woke up her husband PW1 and gave him that information. That was her only role herein .
7. Pw3 Corporal Nicholas Gikundi investigated the case .and one Gerald a bar attendant at the bar of PW1 and PW2 informed him that Henry and Thomas were involved in the incident . On cross- examination, he said Gerald was a witness herein but the said gerald was not called to tell the court what he saw. Gerald the bar attendant who allegedly witnessed the incident and participated in arresting deceased was not called to testify . This court can only presume that had he been called then his evidence would have been adverse to prosecutions case . Pw1 said he arrived at the scene and found the crowd attacking deceased and he intervened . he said he saw accused and Albert Oigara at the scene w at the scene while armed with panga and rungus and accused told him that he was following their stolen cows on cross examination he said he did not see Thomas Oigara at the scene or assaulting the deceased . The said contradiction goes to the root of his testimony. The incident occurred at around mid night and Pw1 did not say how he identified accused , whether the scene was lit and the intensity of the light and how long he spoke with accused , in what language or the desription of the clothes he was wearing . In the case of Republic v Turnbull (1971) QR 227 useful guidelines in so far as identification / recognition at night is concerned were issued . The court held that :
“... The Judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. How long did the witness have with the Accused under observation? At what distance? In what light? Was the observation impeded in any way....? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused? how long elapsed between the original observation and the subsequent identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and his actual appearance?.... Recognition may be more reliable than identification of a stranger but even when the witness is purporting to recognize someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made.”
8. It has emerged that this was a case of mob justice and the role played by accused is not clear and the conditions in the said R vs Turnbull case have not been satisfied . If accused opts to remain silent during his defence then this court cannot convict him based on the evidence on record . It is doubtful whether accused was at the scene . I find that accused was not properly placed at the scene and the evidence on record is insufficient to place him on his defence . He thus has no case to answer and I proceed to acquit him under Section 306 (1) CPC .