[2022] KEHC 1162 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MIGORI

CRIMINAL CASE NO. 7 OF 2019

PETER BOKE NYAMBURI......................................................1st ACCUSED

JEREMIAH JULIUS CHACHA..............................................2nd ACCUSED

NELSON MOGENDI BOKE....................................................3rd ACCUSED

VERSUS

REPUBLIC...............................................................................RESPONDENT

RULING

The three accused persons namely, Peter Boke Nyamburi, Jeremiah Julius Chacha, Nelson Mogendi Boke,are jointly charged with the offence of Murder contrary to Section 203 as read with Section 204 of the Penal Code.

The particulars of the charge read that on 23/3/2014 at Kubweye village in Tagare Sub Location, Bugembe West Location in Kuria West Sub County, jointly murderedSamson Nyamburi Boke.

They denied the offence and the trial commenced with the prosecution calling a total of six witnesses and closed its case.

The court is called upon to determine whether the prosecution has established a prima facie case against the accused persons that warrants them to be called upon to defend themselves.

What then is a prima facie case?

The Oxford Companion of Law at page 907 defines “Prima facie” as follows; -

“ A case which is sufficient to all an answer while prima facie evidence which is sufficient to establish a fact in the absence of any evidence to the contrary is not conclusive”

In Republic =vs= Abdi Ibrahim Owl (2013) eKLR, the Court defined Prima facie as follows ;-

“Prima facie” is a Latin word defined by Black’s Law Dictionary, 8th Edition as “Sufficient to establish a fact or raise a presumption unless disproved or rebutted”. “Prima facie case” is defined by the same dictionary as “The establishment of a legally required rebuttable presumption”. To digest this further, in simple terms, it means the establishment of a rebuttal presumption that an accused person is guilty of the offence he/she is charged with. In Ramanlal Trambaklal Bhatt v. R [1957] E.A 332 at 334 and 335, the court stated as follows:

“Remembering that the legal onus is always on the prosecution to prove its case beyond reasonable doubt, we cannot agree that a prima facie case is made out if, at the close of the prosecution, the case is merely one “which on full consideration might possibly be thought sufficient to sustain a conviction.” This is perilously near suggesting that the court would not be prepared to convict if no defence is made, but rather hopes the defence will fill the gaps in the prosecution case. Nor can we agree that the question whether there is a case to answer depends only on whether there is “some evidence, irrespective of its credibility or weight, sufficient to put the accused on his defence”. A mere scintilla of evidence can never be enough: nor can any amount of worthless discredited evidence…It is may not be easy to define what is meant by a “prima facie case”, but at least it must mean one on which a reasonable tribunal, properly directing its mind to the law and the evidence could convict if no explanation is offered by the defence.”

The evidence on record does not in any way connect accused 2 and 3 to the offence. All of the witnesses including PW1 who seem to have partially witnessed the dispute between the deceased and Accused 1 denied having seen Accused 2 and 3 at the scene. None of the other witnesses pointed to accused 2 and 3 as being at the scene or connected them to the offence save that they are all related to the deceased. For the above reasons, I find that no prima facie case has been made out against accused 2 and 3 to warrant them to be called upon to defend themselves. If I place them on their defence I would be calling upon them to fill in the gaps in the prosecution case and if they keep quiet, I will have to acquit them. In Public Prosecution =vs= Zainal Abidin B. Maidin and another Court of Malaya CRA 4ILB-202-08/2013the court held:-

“It is also worthwhile adding that the defence ought not to be called merely to clarify doubts.”

The result is that Accused 2 and 3 are hereby acquitted of the charge of murder under Section 203 of the Penal code under Section 306 (1) of the Criminal Procedure Code.

As regards accused 1, I am satisfied that the prosecution has established a prima facie case against him for him to answer. I accordingly call upon him to enter his defence.

Dated, Signed and Delivered at Migori this 24th day of March, 2022

R. WENDOH

JUDGE

Judgment delivered in the presence of

Mr. Maatwa for the Respondent.

Appellant present.

Nyauke Court Assistant