Republic v Ismael Mohamed Malwa

force. We however splashed torches on him when we had pinned him down. He was arrested a few distance from my house. It is the neighbors who surrounded him. It was the villagers.1 3. She again confirms while being cross-examined that: It was at night when you (the accused) entered my house. I was asleep. You sat on top of me. When you were arrested, I splashed a spotlight on you and saw or identified you. We had never dealt with you before. I had not even seen you before. You were arrested when I was following you. 1 4. The screams had woken up PW2, Abdi Shobe, a villager. He went out immediately and met with the accused person herein. He had a spot light which he used to identify him. He immediately screamed that he had found the thief. The accused person reacted by jumping into some mathenge plants, but that they were still able to catch up with him. They tied him and took him back to the complainant herein. The police were then called. He also confirmed that it was his first-time to see the accused person who was naked at the time. 5. PW3, Mahmoud Jillo, the village headman, responded and found when the accused person had already been arrested and pinned down by the members of the public. The police were called. At the police station, the matter was handled by PW5, No. 11398 PC Matunga Victor. He confirmed that the accused was injured at the time when he was rearrested from the members of the public. 6. The prosecution closed its case on 18.03.2021, and this court is hereby called upon to make a finding on a point of law on whether the evidence tendered has met the threshold of a prima facie case suficient to require the accused person herein to be called upon to make his defense. It should be noted that the burden of proof herein is on the prosecution. The question to be answered by this court, in arriving at a decision on whether a prima facie case has been established or not, is whether the essential elements of the ofience and the ingredients of the charge have been proved by the prosecutions to the required standard. 7. The main issue at this stage is that of identification. The complainant was the only witness called who was expected to give first hand evidence on whether the accused person herein, who is said to have been arrested elsewhere, was the person who had broken into her house and attacked her. I have reproduced the relevant excerpts from her evidence which suggests that there is no nexus between the accused person herein and the person who had broken into her house and attempted to sexually molest her. She claims to have participated in the chase, but still, there is no full proof evidence of how she was able to keep in touch with the person till his arrest by the mob. She just appears not certain on whether the person who was arrested i.e. the accused person herein, while running away nudely in the village, is the same person who attacked her in her house. This has been corroborated by the evidence of PW2 that upon the arrest of the accused person herein, they had to take him back to the complainant herein. This therefore means that the complainant had lost trace of whoever she claims she was chasing. 8. This evidence is shaky and cannot in any way be said to have linked the accused person with the violent attack at the complainant’s house. What if the accused person was an innocent passerby? We cannot rule out this possibility, or even that of mistaken identity. Such mistakes are common in cases of mob arrest or injustice, and the accused person herein appears to have been lucky as he did not lose his life, which is a common occurrence in such mob arrests. Well there is absolutely no evidence, whether direct, circumstantial or otherwise, to place him at the scene of the ofience herein. Refer to pages 7, 8 and 9 of the handwritten notes of the proceedings https://new.kenyalaw.org/akn/ke/judgment/kemc/2021/19/eng@2021-03-11 2

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9. Noting that the prosecution has already closed its case, I see no need to call upon the accused person to make his defense. It will be embarrassing if he decides to exercise one of his options under section 211 CPC and remain silent, as he shall still be entitled to an acquittal. In short, I find no prima facie case established and consequently do hereby dismiss the charge herein pursuant to the provisions of section 210 CPC. The accused person is consequently acquitted of the ofience of Assault Causing Actual Bodily Harm c/s 251 of the Penal Code. He should therefore be immediately set at liberty unless otherwise lawfully held. DATED, SIGNED AND DELIVERED AT HOLA IN OPEN COURT THIS 11TH DAY OF MARCH, 2021 ALOYCE-PETER-NDEGE PRINCIPAL MAGISTRATE In the presence of; Court interpreter: Osman Prosecution counsel: Atika Accused person: Present Victim: Absent https://new.kenyalaw.org/akn/ke/judgment/kemc/2021/19/eng@2021-03-11 3

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