[2019] KEHC 2670 (KLR)
The court found that the prosecution, through the testimony of five witnesses and the post mortem report, had established sufficient evidence to meet the threshold of a prima facie case as defined in Bhatt v Rex [1957] EA 332. The evidence, if unchallenged, could result in a conviction. Therefore, the accused is...
Source-derived case information.
- Citation
- [2019] KEHC 2670 (KLR)
- Parties
- Applicant: Republic; Defendant: David Obulu Atolwa
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 1 of 2017
- Procedural Posture
- Criminal Case / Ruling on Prima Facie Case at Close of Prosecution
- Outcome
- Accused found to have a case to answer and is placed on his defence.
- Judges
- AT Sitati, DN Musyoka
- Legal Topics
- Murder, Prima Facie Case, Burden of Proof, Criminal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
David Obulu Atolwa
Defendant
Procedural Posture
Criminal Case / Ruling on Prima Facie Case at Close of Prosecution
Legal Issues
- 1 Whether the prosecution has established a prima facie case against the accused to warrant being placed on his defence.
Ratio Decidendi
The court found that the prosecution, through the testimony of five witnesses and the post mortem report, had established sufficient evidence to meet the threshold of a prima facie case as defined in Bhatt v Rex [1957] EA 332. The evidence, if unchallenged, could result in a conviction. Therefore, the accused is required to be placed on his defence to answer to the charge of murder under section 203 as read with section 204 of the Penal Code.
Court Disposition
Accused found to have a case to answer and is placed on his defence.
Orders
- The accused is called upon to indicate how he intends to defend himself.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KAKAMEGA
CRIMINAL DIVISION
CRIMINAL CASE NO. 1 OF 2017
REPUBLIC......................................................................PROSECUTION
VERSUS
DAVID ABULU ATOLWA......................................................ACCUSED
CORAM: LADY JUSTICE RUTH N. SITATI
RULING
The Charge
1. The accused person herein DAVID OBULU ATOLWA was arraigned before this court on 15th January 2017 to face one count of murder contrary to section 203 as read with section 204 of the Penal Code. The particulars of the offence are that on the 31st day of December 2016 at Ebusiratsi Village, Ebusiiratsi Sub-location Irumbi Location in Emuhaya Sub-County within Vihiga County, he murdered ASTON ONGATI CHARLES. The accused person denied the allegations.
The Prosecution’s case
2. The prosecution called 5 witnesses, namely Benina John Etale, PW1, Josah Omeko Karachi PW2, Evans Maoga Ohuya, PW3, Rufusi Angote Kusindi, PW4 and number 87875 CPL Jacob Birgen who was PW5. PW5 was also the Investigating Officer in the case. He produced the post mortem report concerning the body of the deceased. According to the Post mortem report, the deceased died as a result of severe head injury secondary to blunt force trauma following assault.
Issues for Determination and Conclusion
3. The issue for determination is whether the prosecution has established a prima facie case against the accused person to warrant his being placed on his defence. What amounts to a prima facie case was determined by the Court of Appeal for Eastern Africa in the case of Bhatt versus Rex [1957] EA 332.
4. Applying those principles to the evidence on record, I am satisfied that the prosecution has established a prima facie case against the accused person which now requires him to defend himself against the allegation that on the 31st day of December 2016, he murdered Aston Ongati Charles.
5. In defending himself, the accused person may give sworn or unsworn evidence or elect to remain silent and let the court decide the case on the evidence that is before it. If he gives sworn evidence, he may be asked questions both by the court and the prosecution. No questions will be put to him if he elects to give unsworn evidence. Except where the accused elects to remain silent he is entitled to call witness in his defence.
6. I now call upon the accused person to indicate to the court how he intends to defend himself
7. It is so ordered.
Ruling written and signed at Kapenguria
R. N. SITATI
JUDGE
Ruling delivered, dated and countersigned in open court at Kakamega on this 25th October, 2019
WILLIAM M. MUSYOKA
JUDGE
Ms Rotich for state/prosecutor
Accused present in person
Eric - court assistant