1.Oscar Otieno Osalo is charged with an offence of murder contrary to section 203 as read with section 204 of the Penal Code.
2.The particulars of the offence are that on 16th day of July 2020, at Ndira village, in Ndhiwa Sub County within Homa Bay County, murdered Peter Osalo.
3.It was alleged that the deceased herein left their home in the company of the accused. When the two went missing, a report of missing persons was made to the police. Later the deceased was found dead and the accused was charged.
4.George Isaac Osalo (PW1) testified that his father informed him that the deceased and the accused left home together. This was hearsay. Even if the prosecution had adduced direct evidence to confirm the same, without any other evidence adduced to connect the accused to the death, this remains in the realm of suspicion. The Court of Appeal in the case of Sawe vs. Republic KLR 354, the Court of appeal held as follows:Suspicion, however strong, cannot provide the basis of inferring guilt which must be proved by evidence beyond reasonable doubt.
5.The other evidence that tended to connect the accused to the offence is that of the investigating officer. He produced an OB extract which is a confession. However, this is inadmissible. The law is very clear on how and by whom a confession is recorded. Section 25A (1) of the Evidence Act provides as follows:A confession or any admission of a fact tending to the proof of guilt made by an accused person is not admissible and shall not be proved as against such person unless it is made in court before a judge, a magistrate or before a police officer (other than the investigating officer), being an officer not below the rank of Chief Inspector of Police, and a third party of the person’s choice.I find that the OB extract is an attempt to adduce evidence of confession through the back door. I accordingly disregard it.
6.Has the prosecution established a Prima facie case against the accused? Prima facie is defined in the Black’s Law Dictionary, 10th Edition as follows:Prima facie case. (1805) I. The establishment of a legally required rebuttable presumption. 2. A party's production of enough evidence to allow the fact-trier to infer the fact at issue and rule in the party's favor.
7.The Court of appeal in the case of Ramanlal Trambaklal Bhatt v. R  E.A 332 at 334 and 335, defined prima facie case as follows:It may not be easy to define what is meant by a “prima facie case”, but at least it must mean one on which a reasonable tribunal, properly directing its mind to the law and the evidence could convict if no explanation is offered by the defence.
(2)Every accused person has the right to a fair trial, which includes the right—(i)i) to remain silent, and not to testify during the proceedings;In the instant case, if the accused opt to exercise his constitutional right hereinabove stated, I cannot convict him based on the evidence on record. This therefore means that the prosecution has not established a prima facie case against him. I accordingly acquit him of offence of murder under section 306 (1) of the Criminal Procedure Code. He is set at liberty unless if otherwise lawfully held.