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|Case Number:||Criminal Case 24 of 2009|
|Parties:||REPUBLIC v BUNGE LELEMOSI|
|Date Delivered:||20 Dec 2010|
|Court:||High Court at Nakuru|
|Citation:||REPUBLIC v BUNGE LELEMOSI  eKLR|
|Disclaimer:||The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information|
All the witnesses who went to the scene where the body was, except P.W.2 Lelemusi Swaki (Swaki), did not find the body. It is only Swaki who stated that he saw the body of the deceased lying on the ground. According to him, he noted an injury on the head and blood was oozing from the nose and mouth. It was Swaki’s evidence that he was in the company of Lukosum when he went to the bush where the body was. They left the body at the scene.
The third matter is that there is nothing to link the accused with the disappearance of the deceased. I say disappearance because I find Swaki’s testimony incredible. In the company of Lukosum, he went to the scene, found the deceased dead, with a head injury and blood oozing from the nose and mouth, which suggest the injuries were fresh, yet they left his body in the bush. All the witnesses who went to the scene confirmed that it is a dense bush inhabited by wild animals. If indeed and personally I doubt this, Swaki and Lukosum went to the wilderness where they found their cousin dead and they had the human (or is it the animal) heart to leave his body there for three days (and according to other witnesses three months), then that was not only irresponsible but also incredible.
Proof of the cause of death in a murder trial is paramount as was stated in the case of Ndungu Vs. Republic 1985) KLR, 487 where the Court of Appeal said:
For these reasons, I find that no prima facie case has been established. The accused is acquitted under section 306 of the Criminal Procedure Code. He shall be set at liberty forthwith unless held for any other lawful cause.