[2015] KEHC 1912 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

CRIMINAL APPEAL NO. 145B OF 2008

(From original conviction and sentence in Criminal Case No. 751 of 2007 of the Principal Magistrate’s Court at Makindu, Hon. B. Ochieng, P. M.)

REPUBLIC.............................................................................APPELLANT

VERSUS

DAVID KIMEU MAKOVU............................................1ST RESPONDENT

JAMES MUSYOKA KIVISU......................................2ND RESPONDENT

JUDGMENT

1. The Appellant herein is the State. The 1st Respondent, David Kimeu Makovu and the 2nd Respondent, James Musyoka Kivisu were charged with the offence of stealing stock contrary to Section 278 of the Penal Code.

The particulars of offence state that on February 2006 at Kathyaka Sub-Location, Kikumbulyu Location in Makueni District within Eastern province jointly stole a bull valued at Ksh 16,000/= the property of Francis Nzuve Ngundo.

2. When the Respondents were arraigned before the trial court, they pleaded not guilty. The case proceeded to a full hearing. Upon the close of the prosecution case, the trial court ruled that the Respondent’s had no case to answer and acquitted the Respondents under Section 210 of the Criminal Procedure Code.

3. The prosecution was aggrieved by the said acquittal and appealed to this court on grounds that can be summarized as follows:

That the prosecution rendered sufficient evidence which established a prima facie case.

That the trial magistrate introduced extraneous matters and disregarded the prosecution evidence.

4. During the hearing of the appeal, both the prosecution and the Respondents made oral submissions. I have considered the said submissions.

5. Did the prosecution establish a prima facie case against the Respondents to warrant them being placed on their defence? As stated in the case of RAMANLAL T. BHATT Vs. R (1957) E.A. 332;

“..... the court is not required at this stage to decide finally whether the evidence is worthy of credit, or whether if believed it is weighty enough to prove the case conclusively: that final determination can only properly be 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 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.”

6. I have considered the evidence adduced by the four prosecution witnesses, that is, PW1 Francis Nzuve Kundo, PW2 Daniel Mwaka, PW3 Thomas Mboya and PW4 PC Isaac Too. In my view, the evidence of these witnesses established a prima facie case.

7. The trial magistrate seems to have tried to pre-empt the defence case when he stated as follows in his ruling:

“From the foregoing it is clear that the accused persons had no intention of stealing the bull that was entrusted to them by PW1 and only sold it off after it fell sick and its condition did not improve despite their administering drugs. Indeed PW1 collected the second bull from the accused persons later on. Had they intended to steal the bulls they would have also sold the healthy bull too.”

8. The appeal has merits and is allowed. The ruling of the trial magistrate that there is no case to answer is hereby set aside and substituted with a ruling that there is a case to answer. The file is returned to the lower court for compliance with Section 211 of the Criminal Procedure Code. Case to be mentioned on 26th November, 2015 at the Principal Magistrate’s Court at Makindu for fixing of hearing date before another magistrate other than Hon. B. Ochieng, Principal Magistrate.

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B. THURANIRA JADEN

Dated and delivered at Machakos this 1st day of October, 2015

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B. THURANIRA JADEN

JUDGE