1.The accused JM is charged with murder c/s 203 as read with 204 of the Prosecution of his daughter of the accused. The Prosecution’s case appeared to be that the accused had strangled and sexually defiled his said daughter aged about 1 ½ years years following a matrimonial disagreement with his wife the mother of the deceased. The Prosecution called 6 witnesses to prove the charge and their evidence is set out in full below.
2.PW 1 JM testified that
3.On Cross Examination he said:
4.PW2 SKM, the Assistant Chief xxxx sub-location, testified that:
5.On cross-examination he said:
6.PW3 No xxxx Sgt Festus Musya Musyimi the investigating Officer testified that:
7.On cross-examination he said
8.PW4 No xxxx CI Luka Toroitich, testified that:
9.On cross-examination he said:
10.PW5 Doctor Kinani Scholastica, a General Pathologist testified as follows:
11.On Cross-examination she said:The circumstances of death matter.The first page of the report indicates that circumstances of death were that the body was found lying dead in an abandoned house and upon further investigation on her body it was suspected that the body had been sexually assaulted.I used the probability as I was not certain that Ashphyxia was the cause of death.The assault was at Canal opening. The pattern of injury indicated sexual assault.I said its probably Ashphysia.I was certain about internal pressure.'
12.PW6 Susan Wanjiru Ngugi Government Chemist officer testified as follows:
The witness was not Cross Examined.
13.The case was marked with perennial unavailability of witnesses and the court had on occasions to make orders for last adjournment to grant prosecution opportunity to bring its witnesses culminating in the issuance on request of the prosecution of Warrant of Arrest to issue for the named witnesses JM, MM, and FM. These witnesses were never secured.
Whether there is a case to answer
14.The question arising at the Close of case for the prosecution, is whether, on the evidence presented before the court, there is established a prima facie case to warrant the calling of the accused to make his defence for the charge of murder contrary to section 203 as read with 204 of the Penal Code. Section 306 of the Criminal Procedure Code provides therefor as follows:
15.The Counsel for the accused and for the Prosecution, when invited by the court to make submissions, urged the court to make a ruling on the basis of the evidence presented before the court without making any submissions.
16.The Court must consider in terms of section 306 whether there is evidence that an offence has been committed, having regard to the elements of the offence which require to be proved beyond reasonable doubt. In the case of murder, the elements of the death and cause thereof; the unlawful act of the accused which causes the death; and the existence of malice aforethought must be proved. See Anthony Ndegwa Ngari v Republic  eKLR.
17.On the evidence adduced by the Prosecution, apart from the fact of disagreement between the accused and his wife, and the death of the child which is testified to by the witnesses PW1 and PW2 and confirmed by medical evidence of PW5, the date May 9, 2015 according to PW1 and May 10, 2015 according to PW2] and cause of death is uncertain between asphyxia and sexual defilement, and the assailant(s) is clearly not identified. It was not clear whether the child was killed by the mother, the father, or both, or any other person. The discovery of the killing was done by the Village elder PW1 was visited by the mother and the father of the child sought his help to contact the child’s grandmother, and who were arguing between themselves and, in the ensuing scuffle, he discovered that the child that the mother was carrying in her arms was dead. As testified by the Government Chemist official PW6, the samples presented for DNA analysis did not produced genetic profile that could identify the accused as the assailant, and the Government Chemist’s call for further evidence did not yield fruit.
18.Moreover, there was a case of interference with evidence as the dead child was allegedly moved from the scene by the mother who did not know that the child was dead and the body returned to the alleged scene of crime, upon suggestion by the village elder PW1 and the Assistant Chief (PW2) on discovery that the child was dead. It is not safe to convict on such evidence because of the obvious danger of its being stage managed, wittingly or unwittingly.
19.There was clearly no evidence upon which the court could find that the accused had committed the offence charged as required under section 306 of the Criminal Procedure Code.
20.Consequently, the Court, in terms of section 306 (1) of the Criminal Procedure Code, finds that the prosecution has not presented evidence that the accused committed the offence and the court enters a finding of not guilty for the offence of murder c/s 203 as read with 204 of the Penal Code. The accused is entitled to an acquittal at this stage of case to answer in accordance with the law.
21.The accused is acquitted of murder contrary to sections 203 as read with 204 of the Penal Code, and there shall be an order directing his immediate release unless he is otherwise lawfully held.Order accordingly.