Eldoret High Court acquits man charged with murder!
“the DPP violated the rights and fundamental freedoms of the accused person protected and guaranteed by the constitution”
Justice Reuben Nyakundi -Presiding Judge Eldoret High Court/File
The High Court in Eldoret has acquitted a man who had been charged with murder for lack of evidence linking him to committing the heinous act.
Justice Reuben Nyakundi who gave the ruling setting free Moses Rotich poured cold water on the prosecution case while faulting the prosecution of presenting a case that ‘had no legs to stand on and that was built on quick sand.’
The judge noted that despite the case pending in court for more than eight years and four witnesses called to testify, the prosecution had failed to discharge the burden of proof of a prima facie case.
He stated that his court would therefore throw out the case and not call upon the accused person to state his defense.
Justice Nyakundi held that from the evidence essentially relied upon by the prosecution he found no link to connect the accused person to the charge of killing the deceased.
“One of the consequence provided for under the criminal procedure code is to acquit the accused person and as a must he is free indeed unless otherwise lawfully held,” the court ruled.
In his ruling, Justice Nyakundi further stated that the testimonies given by the four prosecution witnesses were nothing short of suspicions and innuendos making no credible reference to the accused person.
He stated that the only essential ingredient that was alluded to by the four witnesses was the fact that the deceased is dead.
“The other remnants of the ingredients like whether the death was unlawfully caused, whether the assailant was actuated with malice aforethought expressly defined in Section 206 of the Penal Code and finally whether the accused person was or is sufficiently identified positively by any of the four witnesses is not even in the scope of suspicion but fabrication,” the judge stated.
The court further noted that the death of the deceased was not in dispute since a postmortem report revealing that the deceased died of a severe head injury had been tabled.
In the case, Rotich was accused of killing Hezron Mulwo on the night of September 22, 2015 at Norama village in Keiyo North sub-county within Elgeyo Marakwet County.
Rotich had pleaded not guilty to the charge leading to the commencement of the trial.
The judge noted that there should be no gamble to permit a trial court to place an accused person on his or her defense whereas the essential typologies of a prima facie case remain in the realm of suspicion.
“If the evidence is so weak that no reasonable jury properly directed could convict on it, a submission should be upheld. Weakness may arise from the sheer improbability of what the witness is saying, from internal inconsistencies in the evidence or from it being of a type which the accumulated experience of the court has shown to be of doubtful value,” the judge held.
The Judge further lectured the prosecution adding that ‘it is better if ten guilty persons go scot free than if one innocent person is convicted.’
“In conclusion I urge the prosecution to accept their shortcomings in making a decision to charge the accused person on October 2, 2015 of an offence which had no solid rock as required by the spirit of the constitution in Article 157 (11) which roars as follows: “In exercising the power conferred by this Article the Director of Public Prosecution shall have regard to the public interest, the interest of the administration of justice and the need to prevent and avoid abuse of the legal process,” the judge stated.
He claimed that the DPP violated the rights and fundamental freedoms of the accused person protected and guaranteed by the constitution under the guise of exercising the constitutional mandate to initiate a prosecution against him.
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