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Republic v Mbayisi (Criminal Case 23 of 2017) [2022] KEHC 16593 (KLR) (16 December 2022) (Ruling)
Neutral citation:
[2022] KEHC 16593 (KLR)
Republic of Kenya
Criminal Case 23 of 2017
PJO Otieno, J
December 16, 2022
Between
Republic
Prosecutor
and
Derrick Mbayisi
Accused
Ruling
1.The 7th and last witness in this matter was called and testified on February 13, 2019 when the matter was adjourned to enable the prosecution call the doctor to produce the post mortem report and investigating officer to give evidence.
2.This was not to be because the investigating officer proved elusive but the two counsels agreed by consent to have the post mortem report produced by consent and the same was marked Exh P1.
3.The defence has filed well researched and argued submission stressing largely that there having been failure to produce the post mortem report, death has not been proved and therefore there has not been established a prima facie case to merit the accused being put on their defence. The other point put forth is that not all ingredients of the offence have been established.
4.The court has perused the file and noted that the post mortem report was produced by consent and the opinion expressed in it marries with the injuries suffered by the deceased. There is also evidence of witnesses who witnessed the altercation between accused and the deceased. The totality of that evidence connects the accused to the death of the deceased to an extent that calls for a rebuttal by the accused.
5.I find that the prosecution has established a prima facie case which calls that the accused be placed on his defence.
6.The court finds that the accused has a case to answer.
DATED, SIGNED AND DELIVERED IN OPEN COURT THIS 16TH DAY OF DECEMBER 2022.PATRICK J O OTIENOJUDGEIn the presence of:Mr Iddi for the accusedMs Chala for the prosecutionCourt assistant: Polycap Mukabwa
