[2020] KEHC 1129 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MALINDI

CRIMINAL CASE NO. 16 OF 2017

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

VERSUS

CHARO KAZUNGU CHENGO ................................ ACCUSED

CORAM: Hon. Justice R. Nyakundi

Mr. Alenga for the state

Ms. Mwania for the accused person

RULING

The accused is herein charged with the offence of murder contrary to Section 203 and 204 of the Penal Code. The brief particulars are that on 16. 9.2017 at Gede village, jointly with others not before Court murdered Chifu Chengo Kitoo.

At the close of the prosecution case of the eight witnesses summoned, the Court is under the mandate to determine whether a motion of no case to answer can be upheld in favour of the accused or a primafacie case to warrant him to be placed on his defence.

Determination

The requirement of Section 203 of the Penal Code is for the prosecution to proof the following ingredients of the offence:

(a). That the deceased is dead.

(b). That his death was through unlawful acts or omission.

(c). That in causing death the accused person had malice aforethought.

(d).That in arresting and preferring a charge of murder against the accused there is positive evidence on identification to place him at the scene.

The basis of this interlocutory Ruling is for the Court to determine whether in terms of Section 306 of the Criminal Procedure Code a primafacie case has been established to call upon the accused to state his defence in rebuttal. It is trite that under Section 107 (1) of the Evidence Act the burden of proof to prove existence of any fact for the offence to secure Judgment against the accused lies with the prosecution. (See the principles in Miller v Minister of Pensions {1947} 2 ALL ER 372). United States v Isaac 134 F 3d 199 3rd circuit 1998:

“A reasonable doubt is a fair doubt, based upon reason and common sense, the kind of doubt that would make a reasonable person hesistate to act, proof beyond reasonable doubt must therefore, be proof of such a convincing character. That you would be willing to rely and act upon it, unhesitatingly, in the most important of your own affairs.”

Focusing on the state case at this stage is for the Court to orient itself specifically to proof of the elements of the offence as against the accused person. This kind of approach is to keep an eye for defences that there may be raised in rebuttal of the case by the accused.

Clarity in this area on a primafaice case has been gained from the various decisions by the superior Courts. The leading example is in Sanjit Chaittal v The State {1985} 39 WLR 925held:

“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.”(See also R. T. Bhutt v R {1957} EA 332).

In the case at bar the prosecution summoned eight witnesses in support of the charge. First, the witnesses state that the deceased was attacked and fatally injured on 6. 9.2017. Furthermore, the evidence on record shows that the accused person was identified and placed at the scene of the crime. Most significant is the evidence of (PW4) Kadzo Kazungu and (PW5) – Charo Mwalimu.

In the foregoing circumstances, I find that there is sufficient evidence to establish existence of a primafaice case against the accused to warrant him to be placed on his defence.

DATED, SIGNED AND DELIVERED AT MALINDI THIS 3RD DAY OF DECEMBER 2020

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R. NYAKUNDI

JUDGE

In the presence of:

1. Mr. Alenga for the state

2. Ms. Mwania advocate of the accused person