[2019] KEHC 11418 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CRIMINAL DIVISION

CRIMINAL CASE NO. 56 OF 2015

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

VERSUS

BENARD NTHIWA MAKAU....................ACCUSED

RULING

1. The accused BENARD NTHIWA MAKAU was charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code the particulars of which were that on the 10th day of May 2015 at Kibagare slums within Kangemi, Nairobi County murdered JOSEPH KARANGA alias BABU.

2. He pleaded not guilty to the said charges and to prove its case against him the prosecution called and examined a total of six (6) witnesses. At the close of the prosecution case both the prosecution and the defence filed written submissions which they highlighted. On behalf of the prosecution it was submitted by Mr. Okeyo that it was not disputed that the accused and the deceased had an argument and differences after the accused broke the deceased’s chair from which he sought repayment and the accused refused to pay and a fight broke out between them in the presence of PW2 leading to the unnatural death of the deceased and therefore a prima facie case had been made out to enable the court place the accused on his defence, as should the accused opt to remain silent during his defence the Honourable Court can convict him on the base of available evidence.

3. On behalf of the defence it was submitted by Mr. Uvyu that none of the prosecution witnesses saw the accused assault the deceased and that all the witnesses testified that the deceased was the aggressor. It was submitted that no malice aforethought was established on the part of the accused and therefore all the ingredients of murder had not been established by the prosecution to enable the court place the accused on his defence.

4. At this stage of the proceedings all that the court has to determine is whether the prosecution has established a prima facie case to enable the court place the accused person on his defence. Prima facie case has been defined in the case of RAMANLAL TRAMBAKLAL BHATT v REPUBLIC (1957) EA 332 as follows:-

“Remembering that the legal onus is always on the prosecution to prove its case beyond reasonable doubt, we cannot argue that a prima facie 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 could 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 argue 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 may not be easy to define what is meant by 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.” (Emphasis added)

5. In the case of REPUBLIC v JAGJIVAN M. PATEL & Others (1) TLR as follows:-

“All the court has to decide at the close of evidence of the charge is whether a case is made out against the accused just sufficiently to require him to make a defence, it may be a strong case or it may be a weak case. The court is not required at this stage to apply its mind in deciding finally whether the evidence is worthy of credit or whether, if believed, it is weighty enough to prove the case conclusively, beyond reasonable doubt. A ruling that there is a case to answer would be justified, in my opinion, in a borderline case where the court, though not satisfied as to conclusiveness of the prosecution evidence, is yet of opinion that the case made out is one which on full consideration might possibly be thought sufficient to sustain a conviction.”(Emphasis added)

6. Justice J.B. Ojwang as he then was in the case of REPUBLIC v SAMUEL KARANJA KIRIA CR. CASE NO.13 OF 2004 NAIROBI [2009] eKLR had this to say on prima facie case:-

“The question at this stage is not whether or not the accused is guilty as charged but whether there is such cogent evidence of his connection with the circumstances in which the killing of the deceased occurred, that the concept of prima facie case dictates as a matter of law that an opportunity be 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 Criminal Appeal No. 77 of 2006, the Court of Appeal expressed that too detailed analysis of evidence, at no case to answer stage is undesirable if the court is going to put the accused onto his defence as too much details in the trial court’s ruling could then compromise the evidentiary quality of the defence to be mounted.” (Emphasis added).

7. I have taken into account the prosecution case and with the wise counsel by Justice Ojwang in mind without saying much thereon, find that the prosecution has established a prima facie case to enable me call upon the accused to offer some explanation if he so wishes being alive to his rights under Article 50 (1)(i)of the Constitution of Kenya 2010.

8. The accused is therefore advised of his rights under Section 306 of the Criminal Procedure Code.

Dated, delivered and signed at Nairobi this 9th day of May, 2019.

.........................

J. WAKIAGA

JUDGE

In the presence of:-

Mr. Naulikha for the State

Mr. Ndolo for Uvyu for the accused

Accused - present

Court assistant: Karwitha