Why Rally driver Maxine Wahome has been set free

Rally driver Maxine Mirigo Wahome acquitted of the murder of her late boyfriend and fellow rally driver Asad Khan. [File, Standard]

Rally driver Maxine Mirigo Wahome has been acquitted of the murder of her late boyfriend and fellow rally driver Asad Khan after the High Court ruled that the prosecution failed to establish a prima facie case requiring her to be put on her defence.

In a detailed ruling delivered on Tuesday, Justice Lillian Mutende found that the evidence presented by the prosecution was insufficient to sustain the charge of murder and consequently acquitted Wahome under Section 306(1) of the Criminal Procedure Code.

"In totality, after evaluating all the evidence before the court, the case presented by the prosecution has failed to establish a prima facie  case warranting the accused person to be placed on her defence," Justice Mutende ruled.

"In the result, she is acquitted under Section 306(1) of the Criminal Procedure Code. It is so ordered."

The court noted that while the  prosecution had proved the fact and cause of Khan's death through medical evidence, it failed to demonstrate beyond the required threshold that Wahome committed the unlawful act that caused his death.

Justice Mutende reviewed testimony from pathologists, investigators, forensic experts and civilian witnesses before concluding that significant gaps remained in the prosecution's case.

According to the ruling, none of the prosecution witnesses witnessed the incident inside their apartment that resulted in Khan's fatal injuries.

The court also found that forensic evidence, including the CCTV footage tendered in court, did not directly link Wahome to the injuries sustained by the deceased.

 DNA analysis conducted on blood-stained items recovered from the scene matched the deceased's DNA but did not implicate the accused.

Justice Mutende further observed that the investigating officer admitted during cross-examination that she had not obtained evidence disproving Wahome's account that Khan injured himself after breaking the glass door during a confrontation.

The judge also considered the defence argument that medical complications, including septicaemia and subsequent treatment, featured prominently in the evidence presented by medical experts.

 However, the court stated that the central issue remained whether the prosecution had proved that Wahome unlawfully caused Khan's fatal injuries.

On the basis of circumstantial evidence, Justice Mutende held that the prosecution had failed to eliminate other reasonable explanations consistent with the evidence.

"The inference sought by the prosecution does not exclude other reasonable hypotheses," the court found, adding that the law requires circumstantial evidence to irresistibly point to the guilt of the accused before a conviction can be sustained.

Having found that the prosecution did not establish sufficient evidence linking Wahome to the offence of murder, Justice Mutende ruled that requiring her to mount a defence would amount to asking her to fill gaps left in the prosecution's case.