REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT SIAYA

CRIMINAL CASE NO. E009 OF 2021

STATE............................................PROSECUTION

VERSUS

VICTOR OMONDI OYOLA..........1^ST ACCUSED

ANDREW OTIENO OKOTH........2^ND ACCUSED

SAMUEL OYOLO OYOLA..........3^RD ACCUSED

RULING ON A CASE TO ANSWER

1. The 3 accused person herein Victor Omondi Oyola, Andrew Otieno Okoth and Samuel Oyolo Oyola are jointly charged with the offence of Murder contrary to Section 203 as read with Section 204 of the Penal Code.

2. It is alleged in the information dated 17^th May 2021 that between the 30^th day of April and 1^st May 2021, at Wakilia village, Nyagoko sublocation, in South Asembo Location within Rarieda sub county of the Siaya County, the accused jointly murdered Vincent Onyango Oyolo.

3. The accused pleaded Not guilty to the charge of Murder and the prosecution have called 7 witnesses who have testified against the accused.

4. The question at this stage is whether the prosecution has made out a prima facie case to warrant the accused persons to be placed on their defence to answer to the charge of Murder.

5. The defence counsel, Mr. Mshindi has filed written submissions urging this court to acquit the accused persons under Section 306(1) of the Penal Code.

6. In his submissions, it is contended on behalf of the accused persons that the deceased was a terror to the family and the village and secondly, that the accused persons were defending themselves from the deceased who was bent on cutting the 1^st accused his brother and who was in the line of attack.  That the 2^nd accused was a powerless father who was overwhelmed by a rebellious act of the son who had on the previous day cut the sister.  That the second accused did not incite the killing of his son but pleaded for mercy to be protected from the violent son as per the evidence of Eric Ochieng.

7. That the family is plagued with alcoholism, poverty and Godlessness hence the court should not find illegality in the acts of the accused persons and that more so, the 3^rd accused was not a participant in the heinous act.

8. I have considered the evidence of the 7 prosecution witnesses and the submissions on no case to answer.  The reasons for urging this court to find the accused not to have a case to answer are too detailed and raise defenses of self-defense which can only be considered at the full hearing where an accused is given an opportunity to elect to tender that defence of self defence and not at this stage.

9. That aside, and without delving deep into the evidence tendered against the 3 accused persons, I am satisfied that the Prosecution have made out a prima facie case to warrant all the accused persons to be placed on their defence.

10. Accordingly, the accused persons herein Victor Omondi Oyola, Andrew Otieno Okoth and Samuel Oyolo Oyola are found with a case to answer and are hereby placed on their defence.

11. The provisions of Section 306(2) of the Criminal Procedure Code and Article 50(2) (i)(k)(l) of the Constitution are hereby explained to the accused persons in Dholuo language in the presence of their advocate Mr. Mshindi.

12. I so order.

DATED, SIGNED AND DELIVERED AT SIAYA THIS 23^RD DAY OF MARCH, 2022

R.E. ABURILI

JUDGE