Republic v Mohamed & 4 others (Sexual Ofience 10 of 2019) [2020] KEMC 20 (KLR) (23 January 2020) (Ruling) Neutral citation: [2020] KEMC 20 (KLR) REPUBLIC OF KENYA IN THE HOLA LAW COURTS SEXUAL OFFENCE 10 OF 2019 PA NDEGE, PM JANUARY 23, 2020 BETWEEN REPUBLIC ............................................................................................ PROSECUTOR AND ATHMAN MARO MOHAMED ...................................................... 1ST DEFENDANT HAJI DELO JUMA ........................................................................... 2ND DEFENDANT MOHAMED YASSIN BADI ............................................................ 3RD DEFENDANT JAFARI GALOGALO ATHMAN .................................................... 4TH DEFENDANT SAID OMAR MALAND .................................................................. 5TH DEFENDANT RULING 1. 2. Having gone through the entire case for the prosecution, the evidence contained therein, and the rival submissions thereon; 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 as follows: a. The 1st Defendant, with respect to the charge in count 1 b. The 2nd Defendant, with respect to the charge in count 2 c. The 4th Defendant, with respect to the charges in counts 4 and 5 I however, do not find such a case disclosed with respect to the 3rd Defendant herein, Mohamed Yassin Badi, and the 5th Defendant, Said Omar Malan; and the 4th Defendant with respect to the remaining Count 6. So as not to prejudice, afiect, or otherwise, infiuence the defence of the remaining defendants and in the remaining counts herein, I shall reserve my reasons for the findings herein and include them in my final judgment after the close of the defence. https://new.kenyalaw.org/akn/ke/judgment/kemc/2020/20/eng@2020-01-23 1
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3. 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. Consequently the 3rd Defendant is hereby acquitted of the ofience of Gang Rape c/s 10 of the Sexual Offences Act No. 3 of 2006 as charged in count 3 and should therefore be released from remand custody unless otherwise lawfully held. The 5th Defendant is also similarly hereby acquitted of the same ofience as charged in counts 4, 5 and 6; and he should also be set at liberty forthwith unless otherwise lawfully held. The 4th Defendant is also similarly acquitted of the same ofience in count 6. The 4th Defendant shall however remain to make his defence in counts 4 and 5. 4. There was the issue of the motor cycle that was produced as exhibit herein. Its correct numbering should be PEXH. No. 11. 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. DATED, SIGNED AND DELIVERED AT HOLA IN OPEN COURT (BUT IN CAMERA) THIS 23RD DAY OF JANUARY, 2020 ALOYCE-PETER-NDEGE PRINCIPAL MAGISTRATE In the presence of; Court interpreter: Buko Prosecutor: Atika All Defendants: Present Victim: Absent Victim's guardian: Absent https://new.kenyalaw.org/akn/ke/judgment/kemc/2020/20/eng@2020-01-23 2
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