[2016] KEHC 8124 (KLR)
The court found that the prosecution, through the evidence of six witnesses, established a prima facie case against the accused persons for the offence of murder. Despite the absence of the doctor's testimony, the court was satisfied that the evidence on record was sufficient to require the accused to be put on...
Source-derived case information.
- Citation
- [2016] KEHC 8124 (KLR)
- Parties
- Applicant: Republic; Defendant: Edward Okanga Malalu; Defendant: Michael Musango
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 22 of 2013
- Procedural Posture
- Criminal Murder Case / Ruling on Prima Facie Case at Close of Prosecution
- Outcome
- Accused persons to be put on their defence.
- Judges
- AT Sitati
- Legal Topics
- Murder, Prima Facie Case, Criminal Procedure, Burden of Proof
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Edward Okanga Malalu
Defendant
Michael Musango
Defendant
Procedural Posture
Criminal Murder 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 persons to warrant their being put on their defence.
- 2 Whether the evidence adduced by the prosecution meets the threshold under section 306(2) of the Criminal Procedure Code.
Ratio Decidendi
The court found that the prosecution, through the evidence of six witnesses, established a prima facie case against the accused persons for the offence of murder. Despite the absence of the doctor's testimony, the court was satisfied that the evidence on record was sufficient to require the accused to be put on their defence in accordance with section 306(2) of the Criminal Procedure Code. The court relied on the legal standard set out in Bhatt v R [1957] EA 332 regarding what constitutes a prima facie case. Consequently, the accused persons were called upon to indicate how they wished to proceed with their defence, with the options of giving sworn or unsworn evidence or remaining silent.
Court Disposition
Accused persons to be put on their defence.
Orders
- The accused persons are required to defend themselves against the charge of murder.
- The accused persons may choose to give sworn or unsworn evidence or remain silent.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAKAMEGA
CRIMINAL DIVISION
CRIMINAL (MURDER) CASE NO. 22 OF 2013
REPUBLIC………………………………………PROSECUTOR
VERSUS
EDWARD OKANGA MALALU…………………..1ST ACCUSED
MICHAEL MUSANGO……………………………2ND ACCUSED
R U L I N G
Introduction
1. The two accused persons named herein above are charged jointly with others not before the Court with the offence of Murder contrary to section 203 as read with Section 204 of the Penal Code. The particulars of the offence are that on the 21st day of April, 2013 at Emurembe Village within the County of Vihiga jointly with others not before court, murdered Njomo Ombaka. The accused persons denied committing the offence. The case has been ongoing since 24. 03. 2013 when the accused persons first appeared before the Deputy Registrar of this Honorable Court pending plea which was taken on 07. 05. 2013.
2. The prosecution called 6 witnesses in its attempt to prove the case against the accused persons. The doctor did not testify for reasons that even after several adjournments, the prosecution could not avail the doctor to the Court.
3. There were no submissions at the close of the prosecution case. This court has carefully considered the evidence of the 6 prosecution witnesses and has also considered the provisions of the law and in particular the provisions of Sections 203 and 206 of the Penal Code. The Court has also carefully considered the locus classicus of Bhatt – vs – R [1957] EA 332 on what constitutes a prima facie case.
4. From all the above, I am satisfied that the prosecution has established a prima facie case against the accused persons requiring them to be put on their defence in accordance with section 306(2) of the Criminal Procedure Code. Accordingly, the accused persons are required to defend themselves against the charge facing them. In this regard, they may choose to give sworn or unsworn evidence. If they choose to testify under oath, each one of them may be asked questions both by the state and by the court. However, if they choose to give unsworn evidence, they will not be asked any questions. The third option open to the accused persons is to remain silent and let the Court decide the case on the evidence on record. If they choose to testify, each accused person has a right to call witnesses.
5. I now call upon the accused persons to indicate to the court how they intend to proceed with their defence.
It is so ordered.
Ruling delivered dated and signed in open court today at Kakamega this 10th day of October, 2016
RUTH N. SITATI
JUDGE
In the presence of;-
…………Mr. Jamsumba(present)…………………...for prosecutor
…………Miss Mahuni (present)……………………...for 1st accused
……Miss Mahuni…Present)………………………...for 2nd accused
………Mr. Okoiti………………………………...Court Assistant.