[2022] KEHC 14639 (KLR)

Republic v Cheruiyot (Criminal Case 21 of 2017) [2022] KEHC 14639 (KLR) (2 November 2022) (Ruling)

Neutral citation: [2022] KEHC 14639 (KLR)

Republic of Kenya

In the High Court at Bomet

Criminal Case 21 of 2017

RL Korir, J

November 2, 2022

Between

Republic

Prosecutor

and

Isaiah Kipkemoi Cheruiyot

Accused

Ruling

1. The accused person was charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code, cap 63 Laws of Kenya. The particulars of the offence were that on the 26th day of November, 2017 at Murany Village in Kembu Location within Bomet County, murdered Enock Cheruiyot.

2. The accused person took plea on July 12, 2018before Hon. Muya J. and pleaded not guilty to the charge of murder. The prosecution called six (6) witnesses who testified, amongst them, relatives of the deceased. The prosecution’s case was that the accused beat the deceased, his seven-year-old nephew, who was later found by PW2 lying lifeless along the roadside. The deceased was later pronounced dead on arrival at the hospital. Section 107(1) of the Evidence Act cap 80 of the Laws of Kenya provides that:-Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove those facts exist.

3. This burden is vested in the prosecution in criminal trials and at the close of their case, the court must consider the evidence before it and determine whether a prima facie case has been established. section 306 of theCriminal Procedure Code provides:-(1)When the evidence of the witnesses for the prosecution has been concluded, the court, if it considers that there is no evidence that the accused or any one of several accused committed the offence, shall after hearing, if necessary, any arguments which the advocate for the prosecution or the defence may desire to submit recording a finding of not guilty.(2)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 on his own behalf or make unsworn statement and to call witnesses in his defence…..

4. In Republic v Abdi Ibrahim Owl[2013] eKLR a prima facie case was defined as follows:-“Prima facie is a latin word defined by Black’s Law Dictionary, 8th Edition as “Sufficient to establish a fact or raise a presumption unless disproved or rebutted.” “Prima facie case” is defined by the same dictionary as “The establishment of a legally required rebuttable presumption.’’ To digest this further, in simple terms, it means the establishment of rebuttal presumption that an accused person is guilty of the offence he/she is charged with. In Ramanlal Trambaklal Bhatt v R[1957] E A 332 at 334 and 335, the court stated as follows:‘Remembering that the legal onus is always on the prosecution to prove its case beyond reasonable doubt, we cannot agree that a prima facie case is made out if, at the close of the prosecution, the case is merely possibly be thought sufficient to sustain a conviction.’’ This is perilously near suggesting that the court would 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 agree 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 is 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.”

5. At this point of the trial, this court is not required to give a well-reasoned decision as to the guilt or innocence of the accused person. That is preserve of the judgement that will be eventually rendered at the close of the defence case should this court find that he has a case to answer. Indeed, Ojwang J. (as he then was) in Republic v Karanja Kiria, Criminal Case Number 13 of 2004, Nairobi [2009] eKLR stated thus:-“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 face 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.”See also Anthony Njue Neru v Republic, Criminal Appeal No.77 of 2006 eKLR.

6. It follows then that thiscourt is enjoined to merely scrutinize the evidence on Record and make a determination as to whether the ingredients of the offence at hand have indeed been established by theprosecution or not, so that even without a proper defence, theaccused may be convicted at this stage.

7. The guiding principles to be followed in considering whether the accused person has a case to answer at the close of the prosecution’s case were succinctly outlined by the Federal Court of Malaysia when discussing section 180 of their Criminal Procedure Code which is similar to section 306 of our law in the case ofPP v Mohamed Radzi bin Abu Bakar[2005] 6MLJ 399 as follows:-“(i)The close of the prosecution case, subject the evidence led by the prosecution in its totality to a maximum evaluation, carefully scrutinize the credibility of each of the prosecution’s witnesses. Take into account all reasonable inferences that may be drawn from the evidence if the evidence admits of two or more inferences, then draw the inferences that is most favourable to the accused.(ii)Ask yourself the question: If I now call upon the accused to make his defence and he elects to remain silent, I am/prepared to convict him on the evidence now before me? if the answer to that question is YES, a prima facie case has been made out and the defence should be called. If the answer is NO, a prima facie case has not been made out and the accused should be acquitted.(iii)After the defence is called, the accused elects to remain silent, then convict.(iv)After defence is called, the accused elects to give evidence, then go through the steps set out in May v Public Prosecutor[1963] MLJ 263. ”

8. The Offence of murder under section 203 is defined as, “When any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.” This means that for the offence of murder to be proven, three elements must be established as follows:-(i)Death of the deceased(ii)That the death was occasioned by the unlawful acts or omissions of the accused; and(iii)That there was malice aforethought on the part of the accused.

9. I have evaluated the evidence adduced by the prosecution against the above ingredients and in accordance to the guiding principles gleaned from the jurisprudence cited above. It is not in doubt that the victim died as demonstrated by the evidence of the witnesses and the Post-Mortem Report. The cause of death was indicated as respiratory failure. I have considered the evidence of PW4 and the circumstantial evidence now on record. With respect to section 206, I have considered the evidence contained in the Post-Mortem Report and the conduct of the accused after the incident.

10. Following the above, I am satisfied that the prosecution has established a prima faciecase, against the accused. I find that the accused has a case to answer and is accordingly put on his defence.

11. Orders accordingly.

RULING DELIVERED, DATED AND SIGNED AT BOMET THIS 2ND DAY OF NOVEMBER, 2022. ..........................R. LAGAT-KORIRJUDGERuling delivered in the presence of Mr. Njeru for State, Mr. Leteipa holding brief for Mr. J.K.Koech for Accused and Kiprotich (Court Assistant)