[2022] KEHC 2383 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT ELDORET

CRIMINAL CASE NO. 21 of 2018

REPUBLIC............................................................................................PROSECUTION

-VERSUS-

BENARD MUTENYO alias BENA...............................................................ACCUSED

Coram: Hon. Justice R. Nyakundi

Mugun for the state

Mr Okara Advocates

R U L I N G

1. The accused person Benard Mutenyo alias Bena is charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code vide information filed in court on 14/3/2018. It is alleged that on 1/1/2018 at Langas estate in Wareng district within Uasin Gishu County unlawfully murdered Benard Mutenyo alias Bena.

Prosecution Case

2. It is the case for the prosecution by the evidence of Pw1, that on the 1/1/2018 at around 12. 30 am, she was in the company of the deceased heading to her home in Kambi Nguruwe in Langas Eldoret. PW1 stated that the deceased was escorting he since he lived in Panama and that when they reached PW1’s gate, a man came from the corner holding something and then hit the deceased with it on the head as a result of which the deceased fell down. PW1 maintained that the security lights were on and were 30 meters away and that she was able to see the accused. According to PW1, she ran towards the lights and when she turned back she saw fire at the gate and ongoing back to the gate, she found the deceased burning and the accused was holding a metal piece. PW1 stated that the deceased was crying for help and that she asked the accused whether he is the one that hit the accused and that he did not respond. She further stated that she screamed for help and the accused threatened her and she ran to Kisumu Ndogo.

3. PW2 – George Njuguna Mwangi testified as the brother to the deceased and stated that he received a call from one mama Mariana to go see his brother, the deceased. He stated that he went to PW1’s gate and found the deceased lying unconsciously. His evidence was that he found people at the scene including the area chief who called the police and thereafter, the deceased was taken to MTRH hospital where he was treated. It was PW2’s testimony that the deceased kept mentioning the accused name before he died.

4. PW3- was Joseph Mwangi Watene,the deceased father. He stated that the deceased had sustained head injuries and the body had been burnt.

5. A postmortem was carried out by Dr Machariaon 3rd January 2018. According to the evidence of the medical officer who testified as PW4, the deceased on examination was found to have sustained injuries to the face, head, 1st and 2nd degree burns involving the lower limbs, genital area and lower abdominal area. The Doctor attributed the cause of death to severe head injury due to blunt force head trauma.

6. PW-5 PC Yusuf Ismael testified as the arresting officer of the accused and after conducting investigations and taking recording the evidence from the witness charged the accused for killing the deceased.

Determination

7. At the close of the prosecution case, this court is required to make a finding under section 306 of the Criminal Procedure Code on a Motion of a no case to answer or existence of a prima facie case. The said provision of law provides:

“ When the evidence of the witnesses for the prosecution has been concluded, the court, if it considers that there is evidence that the accused person or any one or more of several accused persons committed the offence, shall inform each such accused person of his right to address the court, either personally or by his advocate (if any), to give evidence on his own behalf, or to make an unsworn statement, and to call witnesses in his defence, and in all cases shall require him or his advocate (if any) to state whether it is intended to call any witnesses as to fact other than the accused person himself; and upon being informed thereof, the judge shall record the fact.”

8. I have considered all the evidence tendered by the prosecution. The law is well settled by as to what constitutes a prima facie case. In the case of Ramanlal T. Bhatt -v- Repubic (1957) E.A 332, where the Court stated:

“A mere scintilla of evidence can never be enough, nor can any amount of worthless discredited evidence. It is true as Wilson J said, that the court is not required at that stage to decide finally whether the evidence is worthy of credit or whether if belief it is weighty enough to prove the case conclusively, that final determination can only be properly made when the case for the defence has been heard. It may not be easy to define what is meant by a prima “facie case,” but 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.”

9. In addition, in the case of Uganda V Mulwa Aramathan Criminal Case No.103 of 2008the Court stated that; -

“A prima facie case does not mean a case proved beyond any reasonable doubt since at this stage, Court has not heard the evidence for the defence.”

10. From the above cited authorities, it appears that the duty of the court at this stage is to determine whether there is enough material which tends to connect him to the allegations that he committed the offence, and in this case the offence of murder. In Republic -v- Samuel Karanja Kiria (2009) eKLR Justice J.B Ojwang (as he then was) stated:-

“The question at this stage is not whether or not the accused is guilty as charged but whether there is cogent evidence of his connection with the circumstances in which killing of deceased occurred. That the concept of prima facie case dictates as a matter of law that an opportunity created by this court for the accused to state his own case regarding the killing. The governing law on this point is well settled………... The Court of Appeal is Criminal Appeal No. 77/2006 expressed that too detailed analysis of evidence stage at no case to answer stage is undesirable it the court is going to put accused on his defence as too much details in the trial court’s ruling could then compromise the evidentiary quality of the defence to be mounted.”

11. In the present case, upon examination of the evidence in totality as stated by PW1 the eye witness, I am convinced that there is credible evidence apparent on the face of the record to proof the elements of the offence as known in law these elements being;

a) That the deceased is dead.

b) That his death was due to an unlawful act by the accused

c) That in killing the deceased accused had malice aforethought

d) That it is beyond per adventure the deceased death was caused by the accused.

12. From the evidence on record, I am satisfied that the prosecution has established a prima facie case against the accused. The accused is hereby put on his defence.

DATED, SIGNED AND DELIVERED AT ELDORET THIS 14TH DAY OF FEBRUARY, 2022.

R. NYAKUNDI

JUDGE

In the presence of:-

1. Accused