[2018] KEHC 8026 (KLR)
The court found that the prosecution had adduced evidence, including eyewitness testimony and medical evidence, which, if believed, could support a conviction for murder. The testimonies of PW1 and PW6 directly implicated the accused in stabbing the deceased, and their accounts were corroborated by other witnesses...
Source-derived case information.
- Citation
- [2018] KEHC 8026 (KLR)
- Parties
- Applicant: Republic; Defendant: Augustine Kipkemoi Bosiben
- Court
- High Court
- Court Station
- High Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- Criminal Case Case13 of 2014
- Procedural Posture
- Criminal Trial / Ruling on Case to Answer (prima Facie Case)
- Outcome
- accused placed on defence
- Judges
- EM Ngugi
- Legal Topics
- Murder, Prima Facie Case, Malice Aforethought, Self Defence, Burden of Proof
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Augustine Kipkemoi Bosiben
Defendant
Procedural Posture
Criminal Trial / Ruling on Case to Answer (prima Facie Case)
Legal Issues
- 1 Whether the prosecution has established a prima facie case against the accused to warrant placing him on his defence.
- 2 Whether the evidence adduced establishes the essential ingredients of the offence of murder, including malice aforethought.
- 3 Whether the accused's claim of self-defence or impaired judgment negates the establishment of a prima facie case.
Ratio Decidendi
The court found that the prosecution had adduced evidence, including eyewitness testimony and medical evidence, which, if believed, could support a conviction for murder. The testimonies of PW1 and PW6 directly implicated the accused in stabbing the deceased, and their accounts were corroborated by other witnesses and the post mortem report. The defence submissions, including claims of self-defence and impaired judgment, were noted but did not negate the establishment of a prima facie case at this stage. Applying the standard set out in Ramanlal Trambaklal Bhatt vs R, the court held that a reasonable tribunal could convict on the evidence presented if no explanation was offered by the...
Court Disposition
accused placed on defence
Orders
- The accused is placed on his defence in accordance with section 306 of the Criminal Procedure Code.
- The accused is informed of his right under section 306(2) of the Criminal Procedure Code to state whether he intends to give a sworn or unsworn statement and whether he intends to call any witnesses.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT AT KERICHO
HCCR NO.13 OF 2014
REPUBLIC………………………..….PROSECUTOR
VRS
AUGUSTINE KIPKEMOI BOSIBEN…….ACCUSED
RULING
1. The accused in this matter, Augustine Kipkemoi Bosiben is charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code. The particulars of the offence are that on the 23rd day of March 2014, at Kalyonguet location, he murdered Vincent Kipchumba Korir.
2. The prosecution called 7 witnesses and produced exhibits in support of its case. On behalf of the accused, Learned Counsel, Mr. Motanya, submitted that the prosecution had not established a prima facie case against the accused. According to Mr. Motanya, the prosecution case was full of contradictions, and the prosecution had failed to establish the major ingredient of murder, malice aforethought. His submission was that both the accused and the deceased were drunk at the time of the incident and their judgment was impaired. It was his submission that the deceased was the aggressor and the accused acted in self defence. In his view, the offence of murder has not been established to the required standard to warrant the accused being placed on his defence.
3. In response, Ms. Keli for the state submitted that the state had made out a prima facie case to warrant placing the accused on his defence. From the prosecution witnesses who were, in the state’s view, reliable credible, consistent and corroborative, the prosecution had shown that the accused had stabbed the deceased with malice aforethought.
4. I have considered the evidence adduced by the prosecution and the submissions of defence counsel and counsel for the state. I note that two of the prosecution witnesses were eye witnesses to the offence. PW1, Selly Chelangat, the owner of the homestead where the offence took place and PW6, Kenneth Cheruiyot Langat testified that they saw the accused stab the deceased on the head and on the cheek. The accused was heard to quarrel with the deceased, from whom he was demanding alcohol. He was seen to pull a pen knife from his jacket pocket and stab the deceased.
5. The post mortem report showed that the deceased died as a result of massive haemorrhage following laceration of the major blood vessels of the neck. The testimonies of the other prosecution witnesses, PW2, PW3 and PW4, corroborated the evidence of PW1 and PW3. They were present when the incident occurred and assisted in offering first aid to the deceased. They arrested the accused and disarmed him.
6. From his submissions on behalf of the accused, I note that Counsel for the accused tacitly concedes that the accused did stab the deceased. He submits on the one hand that the accused stabbed the deceased in self defence, and on the other that the accused and the deceased were drinking and the judgment of the accused was impaired. The offence of murder has therefore, in the view of Counsel for the accused, not been proved.
7. At this stage in these proceedings, the only issue I need to address my mind to is whether or not the prosecution has established a prima facie case against the accused. In Ramanlal Trambaklal Bhatt vs R [1957] E.A 332 at 334 and 335, the court stated as follows with respect to what amounts to a prima facie case:
“It 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.”See also R vs Jagjiwan M. Patel and Others (1) T.L.R. (R) 85.
8. In view of the exposition of what amounts to a prima facie case in Ramanlal Trambaklal Bhatt v. RandR vs Jagjiwan M. Patel and Others, which I have set out above, and taking into account the evidence before the court, I am satisfied that the prosecution has established a prima facie case against the accused to warrant placing him on his defence.
9. I therefore place the accused on his defence in accordance with section 306 of the Criminal Procedure Code. I also inform him of his right under section 306 (2) of the Criminal Procedure Code to inform this court whether he intends to give a sworn or unsworn statement in his defence, and whether he intends to call any witnesses.
Dated Delivered and Signed at Kericho this 31st day of January 2018.
MUMBI NGUGI
JUDGE