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Republic v Tobias Odhiambo Omoro & another (Criminal Case 28 of 2015) [2022] KEHC 12177 (KLR) (8 July 2022) (Ruling)
Neutral citation:
[2022] KEHC 12177 (KLR)
Republic of Kenya
Criminal Case 28 of 2015
WM Musyoka, J
July 8, 2022
Between
Republic
Prosecution
and
Tobias Odhiambo Omoro Alias Moi
1st Accused
Patrick Omondi Ndege Alias Daddy
2nd Accused
Ruling
1.The two accused persons are charged with the murder of Selina Echayi Omoro, contrary to section 203 of the Penal Code, Cap 63, Laws of Kenya, as read with section 204, thereof. It is alleged that they killed her on the night of April 25 and 26, 2015, at Esirombe village, Vihiga County. The denied the charge, and 2 witnesses testified.
2.PW1 was Pius Magudha Sidiga. He stated that on April 26, 2015that the cattle of the deceased had not been untethered in the evening from the trees where he had tethered them earlier. He went to the home of the deceased to check for her. He noted that a portion of the wall had been demolished. He made a report of that fact to the village elder. The village elder came and they opened the door to the house, which was unlocked, and find her dead beside her bed. He said he did not see the accused persons kill the deceased. PW2 was the village elder to whom PW1 had reported but the hole made to the wall of the house of the deceased. She went with PW1 and opened the house. They find her body in her bedroom. she informed the police and their local Assistant Chief. She said that she did not know who killed the deceased.
3.The case for the prosecution was closed prematurely, for lack of witnesses on May 5, 2022.
4.The ingredients of the offence of murder that the prosecution should establish the death, the cause of it, the connection of the accused person to its cause, and the mens rea of the accused.
5.PW1 and PW2 were both positive that the deceased died. They are the issues who discovered the body and informed the authorities. The cause of death was not established for the pathologist did not testify. PW1 and PW2 stated that they did not know who killed or caused the death of the deceased.
6.In view of the above, there is no evidence connecting the death of the deceased to the two accused persons. PW1 and PW2 did not talk of seeing them kill or do anything to the deceased which would have caused her death. They did not talk of seeing them with the deceased or at the home of the deceased on the night of April 25 and 26, 2015.
7.It is my finding that there is no evidence which establishes a prima facie case against the accused to warrant the court putting them on their defence. They have no case to answer. I accordingly acquit them. They shall be released from custody, unless they are otherwise lawfully held.
RULING DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA THIS 8THDAY OF JULY,2022W MUSYOKAJUDGEMr. Erick Zalo, Court Assistant.Ms. Kagai, instructed by Office of Director of Public Prosecution, for the RepublicMs. Mburu, accused, in person
