[1999] KEHC 126 (KLR)
The court found that the prosecution failed to establish a prima facie case against the accused, George Munene Kabiru. The only evidence linking him to the offence was his association with the co-accused, Anthony Kinyua Macharia, who had already pleaded guilty to manslaughter and admitted to the stabbing. There was...
Source-derived case information.
- Citation
- [1999] KEHC 126 (KLR)
- Parties
- Appellant: Republic; Defendant: George Munene Kabiru; Defendant: Anthony Kinyua Macharia
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 26 of 1998
- Procedural Posture
- Criminal Case / Ruling on No Case to Answer After Close of Prosecution Case
- Outcome
- acquittal
- Legal Topics
- Murder, Manslaughter, Burden of Proof, Common Intention, Criminal Liability
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Appellant
George Munene Kabiru
Defendant
Anthony Kinyua Macharia
Defendant
Procedural Posture
Criminal Case / Ruling on No Case to Answer After Close of Prosecution Case
Legal Issues
- 1 Whether the prosecution established a prima facie case against the accused to require him to make a defence.
- 2 Whether mere association with a co-accused who pleaded guilty to manslaughter is sufficient to infer common intention for murder.
- 3 Whether the evidence adduced links the accused to the actus reus and mens rea of murder.
Ratio Decidendi
The court found that the prosecution failed to establish a prima facie case against the accused, George Munene Kabiru. The only evidence linking him to the offence was his association with the co-accused, Anthony Kinyua Macharia, who had already pleaded guilty to manslaughter and admitted to the stabbing. There was no evidence of any exchange or altercation between the accused and the deceased, nor any evidence of common intention to commit murder. The prosecution's case relied solely on the accused's presence with the co-accused, which is insufficient in law to infer participation or intent. The court held that both actus reus and mens rea must be established for a murder conviction, and...
Court Disposition
acquittal
Orders
- The accused George Munene Kabiru is acquitted of the offence of murder.
- He shall be released forthwith unless otherwise lawfully held.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CRIMINAL CASE NO 26 OF 1998
REPUBLIC .......................................................................APPELLANT
VERSUS
ANTHONY KINYUA MACHARIA
GEORGE MUNENE KABIRU..............................................ACCUSED
R U L I N G
The accused George Munene Kabiru was jointly charged with Anthony Kinyua Macharia with the offence of murder c/s 203 as read with section 204 of the Penal Code.
The particulars of the offence alleged that on the night of 28th and 29th March, 1997 at Miguta village in Kiambu District of the Central Province the two jointly murdered Stephen Waiganjo Gitau.
The co-accused Anthony Kinyua Macharia pleaded guilty to the lesser charge of manslaughter and on conviction was placed on probation for a period of one(1 year.
The information was then substituted with a fresh one in which the present accused George Munene Kabiru was charged alone with the offence of murder. The particulars remained the same.
The state called a total of nine(9) witnesses. at the close of the Prosecution case the learned counsel for the accused made a submission under section 306 of the Criminal Procedure Code to the effect that the accused has no case to answer. The state maintained that sufficient evidence has been adduced to warrant the accused to offer a defence on the charge as laid.
I have on my part given consideration to the evidence on record and the submissions by both learned counsel.
There is no dispute that the deceased Stephen Waiganjo Gitau died as a result of a stab wound on the lower chest with injury to the heart, diaphragm and liver. This was caused by a sharp object. The post-mortem produced by the prosecution as ext. confirms this.
There is also evidence that the accused herein was together with his co-accused Anthony Kinyua Macharia from the time they were drinking in a bar at Miguta village up to the time they left together. It is also the prosecution case that when the deceased was stabbed the two were together.
The prosecution has laid a lot of emphasis on that particular association. However that is the farthest the evidence can go.
The starting point is that the co-accused in the original charge Anthony Kinyua Macharia pleaded guilty to the charge of manslaughter. The state having accepted that plea in effect discounted the aspect of not only acts rens but also mens rea on the part of the present accused George Munene Kabiru.
I say so because for the offence to be complete the two aspects must be present. The deceased died of one stab blow. The co-accused Anthony Kinyua Macharia admitted as much. This was corroborated by the post mortum report.
There is also evidence that at no time did the present accused exchange any words with the deceased. The mere fact that he was in the company of his co-accused Anthony Kinyua Macharia does not help the prosecution. A common intention cannot be derived from companionship.
Above all, the prosecution has confirmed through the investigating officer that the alleged murder weapon(s) were recovered at the instance of and with the help of Anthony Kinyua Macharia.
With respect therefore, I agree with Mrs Kimani the learned counsel for the accused that the evidence adduced so far is not sufficient to warrant the accused to make any defence. That being the case, I hereby acquit him of the offence of murder and order that he shall be released forthwith unless otherwise lawfully held.
Order accordingly
Dated and delivered at Nairobi this 14th day of October, 1999
A. MBOGHOLI MSAGHA
JUDGE