[2020] KEHC 1137 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

Coram: D. K. Kemei - J

CRIMINAL (MURDER) CASE NO.20 OF 2016

REPUBLIC.....................................................................PROSECUTOR

VERSUS

ALBANUS MULINGE MUTINDA......................................ACCUSED

RULING

1. ALBANUS MULINGE MUTINDA is charged with the offence of murder contrary to sections 203 as read with section and 204 of the Penal Code. It is alleged that on the night of 10th and 11th April, 2016 at an unknown time at Mlolongo Township, Sabaki in Athi River sub County within Machakos County he murdered MIRIAM NGII MAITHA.

2. The accused person is represented by Mr Muthama Advocate whilst the State was represented by Mr Machogu and currently by Mr Mwongera.

3. The prosecution in order to sustain a conviction must prove all the ingredients of the offence of murder. The elements of the offence as provided for under section 203 as read with section 204 of the Penal Code are as follows: -

i. That the deceased is dead;

ii. That the death was caused unlawfully;

iii. That there was malice aforethought; and

iv. That the accused person directly or indirectly participated in the commission of the alleged offence.

4. The prosecution called a total of five (5)witnesses in support of its case. Pw1wasPaul Mutinda Sila who witnessed the post mortem that was conducted on the body of the deceased. He testified that the deceased was the wife to the accused whereas the accused is his son.

5. Pw2wasStephen Maitha who testified that he was at the mortuary to witness the post mortem on the body of the deceased who was his daughter.

6. Pw3wasDr Waithera Githendu who testified of the post mortem examination carried out on the body of the deceased on 25. 4.2016 by Dr Kimbi whose handwriting she was familiar with. The examination noted that there was laceration on the front and back scalp; internal examination revealed a fracture of the skull and that there was internal bleeding; the report was to the effect that it formed the opinion that the cause of death was severe traumatic brain injury and that the possible weapon could be a blunt object. The post mortem report was tendered in court.

7. Pw4wasPc Mwiti Mati who testified that on 11. 4.2016 he was informed that a person whom he later found out was the accused reported that he had killed his wife. He testified that he accompanied the accused to his home where the body of the deceased was found in a blood- splattered room and that there was a blood-stained metal rod that was recovered from the scene. The rod was tendered as an exhibit.

8. Pw5was Pc Wilfred Katana who testified that on 11. 4.2016 the accused turned up at the Mlolongo Police station where he was based and claimed that he had assaulted his wife while having a disagreement with her and had killed her. He testified that he visited the scene where he found a bloodstained room and later received a metal rod from Pw4. He identified the metal rod that was marked as Exh2.

9. Parties agreed to file and exchange submissions on case to answer. However, learned counsel for the defence opted to rely on the evidence adduced at this stage of the proceedings. Counsel for the state submitted that the testimony of Pw4 and Pw5 placed the accused at the scene of the crime; that the weapon was recovered at his home and that he had reported to Pw4 and Pw5 that he had killed the deceased. It was submitted that the accused had malice aforethought and that the accused was identified by Pw4 and Pw5 who received the report that the accused admitted assaulting the deceased. Further that the cause of death was established by the post mortem report that was tendered by Pw3. The court was urged to place the accused on his defence under section 306(2) of the Criminal Procedure Code.

10. Having considered the evidence on record and the submissions of counsel, the singular issue for determination is whether the accused should be placed on his defence.

11. It is trite law that prior to placing an accused person to his/her defence, the prosecution is required to have established a prima facie case against such accused person. It is now a well-established law that a prima facie case is established when the evidence adduced is such that a reasonable tribunal, properly directing its mind on the law and evidence would convict the accused person, if no evidence or explanation was set up by the defence. See Ramanlal .T. Bhatt vs. R [1957]E.A 332,where the East African Court of Appeal held that a prima facie case could not be established by a mere scintilla of evidence or by any amount of worthless, discredited prosecution evidence.

12. Also, in the case of State v. Rajhnath Ramdhan, Amoy Chin Shue, Sunil Ramdhan and Rabindranath Dhanpaul.H.C.A No. S. 104/1997,J.P. Moosali while quoting Lord Parker C.J.in Sanjit Chaittal v The State (1985). 39. WLR. 925stated that:

“A submission that there is no case to answer may properly be made and upheld: (a) when there has been no evidence adduced by the Prosecution to prove an essential element in the alleged Offence; b) when the evidence adduced by the Prosecution has been so discredited that no reasonable tribunal could safely convict on it...”

13. I have carefully evaluated the prosecution evidence. I find that, in the absence of any explanation to the contrary from the defence, the prosecution evidence does establish the three (3) ingredients of the offence of murder. It is not in dispute that there was death and the cause could be established. On the question of the accused’s participation, this court finds that, in the absence of any evidence to the contrary, the evidence of Pw4 and Pw5 does establish that the accused had an opportunity to kill the deceased and as such it would be necessary for him to explain what occurred during the meeting that led to her death. It is instructive that it was the accused himself who turned up at the police station and lodged a report to the effect that he had assaulted the deceased who happened to be his wife and that he led the police to his house where the body of the deceased was found. The accused was thus placed at the scene of crime warranting him to offer an explanation regarding his involvement. In arriving at the above conclusions, I do recognize that at this stage, the standard of proof is not proof beyond reasonable doubt as required for a fully-fledged criminal trial. Rather, what is essential is such evidence which if taken literally or on the face of it would establish the essential ingredients of the offence of murder, as well as the accused’s participation therein.

14. For those reasons, I find that the prosecution has established a prima facie case against the accused herein to require him to be placed on his defence. Consequently, I find that the accused has a case to answer and is now called upon to make his defence in line with the provisions of section 305(2) of the Criminal Procedure Code.

It is so ordered.

Dated and delivered at Machakos this 7th day of December, 2020.

D. K. Kemei

Judge