A Kwale court has absolved a German and Italian national of negligence charges that resulted to the death of British soldier in Diani in April 2012.
Diani Marine Divers Villas CEO and proprietor Thomas Sollacher and his former diving instructor Eduardo Vasta were acquitted by Kwale Chief Magistrate Doreen Mulekyo.
“On diverse dates between the 24th and 26th of April at Diani Marine Villa in Diani, Kwale County, the CEO unlawfully neglected to maintain and repair a bedside lamp in room number 9, which was your duty. By which this omission caused the death of Sgt John James Marley," read the charge.
While giving an abridged version if the ruling, the magistrate said that there were 15 witnesses in the case.
"A total of 15 witnesses testified. In summary the court is called [upon] to determine whether the accused persons owed the deceased a duty of care, whether there was a breach of that duty and finally whether as a result of that breach the deceased suffered the fatal injuries," Ms Mulekyo said in her ruling.
OWNER OF PREMISES
The magistrate said that it was not disputed that the first accused person was the owner of the premises where the deceased died from.
“The evidence of the role of the second accused was, however, inconclusive, with prosecution witnesses contradicting each other,” she said.
Ms Mulekyo added that the in his defence, Mr Sollacher completely absolved Eduardo Vasta from any responsibilities.
She said the court held that the second accused did not owe the deceased any duty or care that would have rendered him culpable.
"Having established this, the prosecution was to prove beyond reasonable doubt that Mr Schollacer was in breach of this duty.
“The court finds that there was no evidence to suggest that the switch was faulty at the time that the guests, including the deceased, checked in." she said.
The court heard that evidence by 10 witnesses showed that the guests were satisfied with the condition of the room.
"It is fair to expect that guests did use the lamp on the night of April 25 but there was no incident," she said.
EVIDENCE NOT HELPFUL
She added that evidence by the county electrical engineer was unhelpful in determining the state of the switch as his examination was conducted away from the scene of incident.
The court found that the prosecution never proved that the first accused person was found to have neglected his duty.
The magistrate said police called personnel from Kenya Power a day after the incident who examined the lines and the switch but were never listed among the witnesses who testified in court.
NO POST-MORTEM REPORT
On whether the cause of death was as a result of the breach, the court said the post-mortem report was never provided and the cause of death remains inconclusive.
The court found that the prosecution failed to establish a case or prove the charges against the accused beyond reasonable doubt and it therefore acquitted them.
Ms Mulekyo ordered that sureties be discharged and all securities or cash deposited be returned to the accused.
Sgnt John Marley from the British Army was said to have died as a result of electrocution.