REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MACHAKOS CRIMINAL CASE NO. 62 OF 2007 REPUBLIC.................................................PROSECUTOR VERSUS MWENDWA KAVINYA..............................1ST ACCUSED NGULA MULEVU.....................................2ND ACCUSED MUTINDA MALUSI...................................3RD ACCUSED MUSYOKA MALUSI.................................4TH ACCUSED RULING 1. The 1st accused Mwendwa Kavinya, 2nd accused Ngula Mulevu, Mutinda Malusi and 4 th accused Musyoka Malusi are charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. 2. The particulars of offence are that on the night of 25 th and 26th October 2007 at Ngomano village, Itoleka Sub-Location, Itoleka Location, Kitui Central Division in Kitui District within Eastern Province jointly murdered Katindi Mwaka. 3. The prosecution case was that on the material night, PW1 Julius Mbiti Masila, PW2 Jacob Mwanzia, PW3 Mumo Mbiti and PW5 Jackson Mutisya saw the deceased under the arrest of the accused persons. That the deceased who had some injuries was being accused of having stolen some sukuma wiki (kales) and was begging for forgiveness. The following day the naked body of the deceased was found at the riverside of a nearby river. A report was made at the Mutomo Police Station. The body was removed to Kitui Hospital Mortuary. After investigations the accused persons were arrested and charged with the offence herein. 4. At the close of the prosecution case, the defence counsel submitted on a no case to answer. He pointed out that there was lack of proper identification of the accused persons on the material night. It was argued that the circumstantial evidence on record is of the weakest kind. 5. The learned counsel for the State submitted on the sufficiency of the prosecution evidence. 6. I have considered the said rival submissions and the evidence on record. 7. The offence took place at night. The evidence of PW1 was that of recognition but does not reveal how he was able to see the culprits at night. It does not reflect any other method of
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identification. Although the evidence of PW2 and PW3 is that of recognition, the two witnesses contradicted each other. According to PW2, it was a dark night but he had a torch that enabled him to see. According to PW3, it was a cloudy night but there was bright moonlight and he could see. According to PW5, it was drizzling but he could see by use of moonlight. The total sum of the evidence of the aforestated witnesses is that it creates doubts on whether there was sufficient light for identification without any possibility of error. 8. In the premises, the prosecution has failed to establish a prima facie case. Consequently the accused persons are acquitted under Section 306(1) of the Criminal Procedure Code. ……………………………………… B. THURANIRA JADEN Dated and delivered at Kitui this 24th day of September, 2015 ……………………………………… B. THURANIRA JADEN JUDGE
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