Republic v Mohamed & 4 others (Sexual Offence 10 of 2019) [2020] KEMC 20 (KLR)
The bottom line
#A Hola court acquitted two accused of gang rape for lack of evidence at the halfway stage, while ordering three others to defend themselves.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether a prima facie case has been disclosed against each accused to require them to make their defence under section 211 CPC
- 2.Whether the charges against the 3rd and 5th Defendants and the charge in count 6 should be dismissed under section 210 CPC
- 3.Whether the motor cycle exhibit should be released to its owner
Key legal issues
#Whether a prima facie case was disclosed against the 3rd and 5th Defendants and in count 6
No prima facie case was disclosed; the charges were dismissed under section 210 CPC and the accused acquitted
Having reviewed the entire prosecution case and rival submissions, the court found a prima facie case only against the 1st, 2nd and 4th Defendants on specified counts. As to the 3rd and 5th Defendants and count 6, no case was disclosed, warranting acquittal under section 210. Reasons were reserved to avoid prejudicing the trial of the remaining accused.
Whether reasons for the ruling at the close of the prosecution case needed to be given immediately
Reasons were reserved to the final judgment to avoid prejudicing or influencing the defence of the remaining accused
The court noted that giving reasons immediately could prejudice, affect or otherwise influence the defence of the remaining defendants in the remaining counts, and accordingly deferred its reasons to the final judgment after the close of the defence.
Release of the motor cycle exhibit
Following the prosecution's application, the motor cycle was to be released to a proven owner
The motor cycle produced as exhibit, correctly marked PEXH. No. 11, was the subject of an application by the prosecution on 25/10/2019 for release to the owner. The court directed its release to a proven owner.
Legal principles established
#- At the close of the prosecution case, an accused is placed on his defence only where a prima facie case is disclosed; where none is disclosed the charge is dismissed under section 210 CPC
Court orders
#- 1.The 1st, 2nd and 4th Defendants called upon to make their defences under section 211 CPC: 1st Defendant on count 1; 2nd Defendant on count 2; 4th Defendant on counts 4 and 5
- 2.Charges against the 3rd and 5th Defendants, and the charge in count 6, dismissed under section 210 of the Criminal Procedure Code
- 3.3rd Defendant acquitted of Gang Rape c/s 10 of the Sexual Offences Act No. 3 of 2006 as charged in count 3 and to be released from remand custody unless otherwise lawfully held
- 4.5th Defendant acquitted of the same offence as charged in counts 4, 5 and 6 and set at liberty forthwith unless otherwise lawfully held
- 5.4th Defendant acquitted of the offence in count 6 but to remain to make his defence in counts 4 and 5
- 6.Motor cycle exhibit (PEXH. No. 11) may be released to a proven owner
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Criminal Procedure Code, sections 210 and 211 (trial of criminal charges)
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
I have come to a conclusion that a prima facie case has been disclosed which requires me to call upon the 1st, 2nd and 4th defendants herein, which I hereby do, to make their defences as required under section 211 CPC
The charges against the 3rd and 5th Defendants; and that in count 6, are hereby dismissed pursuant to the provisions of section 210 of the Criminal Procedure Code.
DATED, SIGNED AND DELIVERED AT HOLA IN OPEN COURT (BUT IN CAMERA) THIS 23RD DAY OF JANUARY, 2020
Following the application by the prosecution on 25/10/2019 for its release to the owner, I do hereby direct that it may be released to a proven owner.
Issues in the judgment
#Names of the 1st, 2nd and 4th Defendants not stated in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Mohamed & 4 others (Sexual Offence 10 of 2019) [2020] KEMC 20 (KLR)", Case Analysis (2020). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2020/20/eng@2020-01-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.