Republic v Musumba (Criminal Case 65 of 2015)  KEHC 16466 (KLR) (15 December 2022) (Ruling)
Neutral citation:  KEHC 16466 (KLR)
Republic of Kenya
Criminal Case 65 of 2015
PJO Otieno, J
December 15, 2022
Johana Onyando Musumba
1.The prosecution closed its case having called three witnesses. Of the three witnesses, the evidence of PW3 connects not the accused with the offence. Only the evidence by PW1 and PW2 connect the accused to the incident to the extent that both saw the accused search the deceased’s pockets while the deceased was lying on the ground on his belly. Neither saw the accused hit the deceased. Their evidence is purely circumstantial in that having seen the accused touch the deceased who had injuries on his body, the accused ought to have given an explanation or an account on how the deceased got so injured but the accused then opted to run away.
2.Circumstantial evidence need to leave no scintilla of doubt that the accused was indeed the assailant. That the accused was so seen and his identification has not been put to doubt, having been a neighbour, well known to the witnesses, the accused may have an explanation by way of rebutting the circumstances pointing at him to have been present when the deceased got assaulted and injured. That explanation however should not serve the purposes of filling in the gap left hanging by the prosecution’s evidence1.
3.However, in a case of murder, one of the ingredients to be proved is that the injuries inflicted by the accused were indeed the cause of death of the deceased. Here the case was closed without the prosecution availing evidence in the cause of death. It remains open and unknown what actually led to the death of the deceased. The linkage between the injury on the deceased and cause of death were stressed by the Court of Appeal in Chengo Nickson Kalama –vs- Republic  eKLR in the following words:-
4.Without evidence linking the death to the injuries observed by PW1, 2 and 3 on the deceased which evidence surely cannot be expected to come from the defence, I do find that the prosecution has failed on its duty to establish a prima facie case.
5.Without prima facie case, the only option available to court under section 306 Criminal Procedure Code is to return a verdict of not guilty and acquit the accused. The accused is thus acquitted and ordered to be released forthwith unless otherwise lawfully held.
DATED, SIGNED AND DELIVERED IN OPEN COURT THIS 15TH DAY OF DECEMBER 2022.PATRICK JO OTIENOJUDGEIn the presence of:Ms Khateshi for the AccusedMs Chala for the ProsecutionCourt Assistant: Polycap MukabwaHigh Court criminal Case No 65 of 2015 – Ruling 2 | Page