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MagistrateDismissedNot stated in the judgment (Criminal case, Kinango, Kwale County)· [2022] KEMC 19 (KLR)

Republic v Swaleh (Election Offence E001 of 2022) [2022] KEMC 19 (KLR)

Magistrates' Court
6 December 2022
JOJ. M. Omido
1,865 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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Twalib Swaleh was charged with Defacing of Campaign Materials contrary to Section 13(L) of the Election Offences Act No. 37 of 2016, particulars alleging that on 3rd June 2022 at Kinango 'B' village, Kwale County, he defaced campaign posters belonging to Said Mtili Rajambo, a prospective candidate for the Kinango Ward Member of County Assembly seat in the August 9, 2022 General Elections. The accused denied the charge and the prosecution called two witnesses: the complainant (PW1) and Inspector Abdirahman Omar, the investigating officer (PW2). PW1 testified that his posters were found smeared with used motor oil making them illegible, and that supporters named the accused, alleged to have been engaged as a driver by one of his opponents, as one of the culprits. PW2 produced three defaced posters as exhibits and confirmed that three witnesses - Rumba Ali Rumba, Omar Kassim and Rajab Amin - had recorded statements implicating the accused, but none of them testified. The court, framing two issues - whether a prima facie case existed and what orders to make - held that the only evidence implicating the accused was inadmissible hearsay from uncalled witnesses. Applying Ramanlal Trambaklal Bhatt v Republic, Kinyatti v Republic, Subramanium v Public Prosecutor, Republic v Kipkering arap Koske, Bukenya v Uganda and Colombus Dindi Okoth, the magistrate drew an adverse inference that the uncalled witnesses' evidence would have been adverse to the prosecution, held the Bhatt test was not met, and acquitted the accused under Section 210 of the Criminal Procedure Code, ordering his immediate release.

Key legal issues

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01

Whether the prosecution established a prima facie case on hearsay evidence from uncalled witnesses

Holding

The prosecution failed to establish a prima facie case; the only evidence linking the accused to the offence was inadmissible hearsay from three witnesses who were never called, justifying an adverse inference against the prosecution.

Reasoning

PW1 and PW2 only relayed that three witnesses (Rumba Ali Rumba, Omar Kassim and Rajab Amin) had named the accused as one of those who defaced the posters. Those witnesses were never presented for cross-examination, so their statements were mere hearsay and inadmissible. Applying Bukenya v Uganda and Colombus Dindi Okoth, the court inferred the uncalled witnesses' evidence would have been adverse to the prosecution. The Bhatt test for a prima facie case was therefore not met, and the accused was acquitted under Section 210 of the Criminal Procedure Code.

p. 4

Legal principles established

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  • A prima facie case is one on which a reasonable tribunal, properly directing its mind to the law and the evidence, could convict if no evidence in rebuttal is offered by the defence.
  • Hearsay evidence is generally inadmissible; statements by persons not called as witnesses, offered to prove the truth of their contents, cannot be admitted.
  • Where the prosecution fails to call crucial witnesses, the court may infer that their evidence would have been adverse to the prosecution and draw an adverse inference.

Court orders

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  1. 1.The accused person is acquitted under Section 210 of the Criminal Procedure Code.
  2. 2.The accused person shall be set at liberty forthwith unless otherwise lawfully detained.
Jurisdiction invoked
Original criminal jurisdiction under the Criminal Procedure Code over a charge of Defacing of Campaign Materials contrary to Section 13(L) of the Election Offences Act No. 37 of 2016

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Republic v Swaleh (Election Offence E001 of 2022) [2022] KEMC 19 (KLR)", Case Analysis (2022). Not stated in the judgment (Criminal case, Kinango, Kwale County). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2022/19/eng@2022-12-06

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.