[2023] KEHC 26642 (KLR)

Director of Public Prosecutions v Muriithi (Criminal Case 42 of 2020) [2023] KEHC 26642 (KLR) (14 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26642 (KLR)

Republic of Kenya

In the High Court at Meru

Criminal Case 42 of 2020

TW Cherere, J

December 14, 2023

Between

Director of Public Prosecutions

Prosecutor

and

Martin Kathurima Muriithi

Accused

Ruling

1. Martin Kathurima Muriithi (accused) is charged with the offence of murder of one Julius Nthamburi on diverse dates between 08th and July 9, 2020 contrary to section 203 as read with section 204 of the Penal Code.

2. Accused denied committing the offence and the prosecution has called three witnesses.

3. At this stage, court is called upon to determine whether, based on the evidence adduced, the prosecution has established a prima facie case to warrant the accused person to be placed on his defence to answer to the charge.

4. It is important to note that the burden of proof lies on the prosecution throughout the trial to prove their case against the accused person. That burden does not shift to the accused person. This is so because the accused person’s constitutionally guaranteed rights include the right to remain silent, the right to adduce and challenge evidence and the right not to give any incriminating evidence. However, at this stage, the prosecution is not expected to have proved their case against the accused person beyond reasonable doubt. The measure is for a prima facie case to be established.

5. Section 306 (1) of the Criminal Procedure Code provides that:“When the evidence of the witnesses for the Prosecution has been concluded, the court, if it considers that there is no evidence that the accused or any one of the several or any one of the several accused committed the offence shall, after hearing, if necessary any arguments which the advocate for the prosecution or the defence may desire to submit, record a finding of not guilty.”

6. Having considered the testimonies of the three prosecution witnesses, the question is whether the evidence tendered establishes a prima facie case against the accused, or whether the accused has a case to answer.

7. In Republic vs Abdi Ibrahim Owi [2013] eKLR, the court defined a prima facie case as follows:“‘Prima facie’ is a latin word defined by Black’s Law Dictionary 8th edition as, “sufficient to establish a fact or raise presumption unless disapproved or rebutted”. ‘Prima facie’ is defined by the same dictionary as “the establishment of a legally required rebuttable presumption.”

8. A prima facie case is therefore established where the evidence tendered by the prosecution is sufficient on its own for a court of law to return a guilty verdict even if the accused opts to remain silent.

9. In Ronald Nyaga Kiura v Republic, the court held:“It is important to note that at the close of the Prosecution, what is required in law at this stage is for the trial court to satisfy itself that a prima facie case has been made out against the accused person sufficient enough to put him on his defence pursuant to the provisions of section 211 of the Criminal Procedure Code...”.

10. PW2, who was the main prosecution witness stated that he did not know Accused prior to the material date and that his name was given to him by PW1, the senior assistant chief. That being the case, evidence by the said PW2 and PW3 the investigating officer that accused was implicated by PW2 was not proved.

11. From the evidence by PW2, it was not demonstrated that the person he saw assault the deceased was none other than Accused who he neither knew nor described either to PW1 nor PW3.

12. The evidence by PW1, PW2 and PW3 properly evaluated falls in the category of what the Court of Appeal described inNdungu Kimanyi v Republic [1979] KLR 282 that:“The witness in a criminal case upon whose evidence it is proposed to rely should not create an impression in the mind of the court that he/she is not a straightforward person, or raise a suspicion about his trustworthiness, or do (or say) something which indicates that he/she is a person of doubtful integrity, and therefore an unreliable witness which makes it unsafe to accept his evidence.”

13. The evidence on record does not establish a primafacie case upon which this court can safely return a guilty verdict even if the Accused opts to remain silent.

14. Consequently, under the provisions of section 306 (1) of the Criminal Procedure Code, accused is hereby found not guilty and it is ordered that he be set at liberty unless otherwise lawfully held.

DATED THIS 14TH DAY OF DECEMBER 2023T. W. CHEREREJUDGEAppearancesCourt Assistants - Kinoti/MuneneAccused - PresentFor the Accused - Mr. Ayub Anampiu AdvocateFor the State - Ms. Rita (PC 1)Page 3 of 4