[2017] KEHC 9494 (KLR)
The court found that, based on the evidence of key prosecution witnesses and expert testimony, the prosecution had established a prima facie case against both accused persons. The court emphasized that at this stage, it is not required to determine guilt beyond reasonable doubt, but only whether there is sufficient...
Source-derived case information.
- Citation
- [2017] KEHC 9494 (KLR)
- Parties
- Applicant: Republic; Defendant: Eric Muya Mwaniki; Defendant: Dalmas Otieno Juma
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 97 of 2013
- Procedural Posture
- Criminal Case / Ruling on Case to Answer at Close of Prosecution Case
- Outcome
- Accused persons placed on their defence.
- Judges
- J Wakiaga
- Legal Topics
- Murder, Prima Facie Case, Burden of Proof, Common Intention
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Republic
Applicant
Eric Muya Mwaniki
Defendant
Dalmas Otieno Juma
Defendant
Procedural Posture
Criminal Case / Ruling on Case to Answer at Close of Prosecution Case
Legal Issues
- 1 Whether the prosecution has established a prima facie case against the accused persons to require them to be put on their defence.
- 2 Whether the evidence adduced links the accused persons to the offence of murder as charged.
- 3 Whether common intention between the accused persons was established.
Ratio Decidendi
The court found that, based on the evidence of key prosecution witnesses and expert testimony, the prosecution had established a prima facie case against both accused persons. The court emphasized that at this stage, it is not required to determine guilt beyond reasonable doubt, but only whether there is sufficient evidence to require the accused to make a defence. The court was satisfied that the evidence, if believed, could sustain a conviction and therefore placed both accused persons on their defence.
Court Disposition
Accused persons placed on their defence.
Orders
- Both accused persons are placed on their defence under Section 306 of the Criminal Procedure Code.
- Accused persons advised of their rights under Section 306 of the Criminal Procedure Code.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
HIGH COURT CRIMINAL CASE NO 97 OF 2013
REPUBLIC................................................PROSECUTOR
VERSUS
ERIC MUYA MWANIKI.............................1ST ACCUSED
DALMAS OTIENO JUMA.......................2ND ACCUSED
RULIING
1. The accused persons ERICK MUYA MWANIKI and DALMAS OTIENO JUMA were charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code the particulars of which were that on 27th August, 2013 at Mlango Kubwa in Starehe District within Nairobi County jointly murdered THOMAS JAGONGO AMESO.
2. They both pleaded not guilty and to prove its case against the same the prosecution called a total of nine (9) witnesses and at the close of the prosecution case the parties made submissions on whether the prosecution has proved a prima facie case against the accused persons to enable the court put them on their defence.
SUBMISSIONS
3. On behalf of the 1st accused it was submitted that the burden of proving the case against the accused person lies with the prosecution and that in an attempt to prove its case against the accused, the prosecution presented witnesses who contradicted themselves and told falsehood. It was submitted that the incident happened where people were passing but no civilian was called to testify on behalf of the prosecution and that though the prosecution had proved the death and cause thereof, the same failed to prove beyond reasonable doubt that the deceased met his death as a result of an unlawful act or omission on the part of the 1st accused.
4. On behalf of the 2nd accused it was submitted that the prosecution failed to establish a prima facie case to warrant the 2nd Accused being placed on his defence. It was submitted that none of the prosecution nine witnesses gave any evidence to identify, connect, or indicate that the 2nd accused committed the offence. It was further submitted that the prosecution did not establish any common intention between the accused persons.
5. On behalf of the prosecution it was submitted that the prosecution established a prima facie case against the accused persons and that common intention under Section 20(1) of the Penal Code was established and that even if the accused persons were to opt to remain silent the court is able to convict them on the basis of evidence tendered.
6. At this stage, the issue is not whether or not the prosecution has established a case against the accused person beyond reasonable doubt but whether a case has been made to justify calling upon the accused person to offer an explanation as was stated in the case of REPUBLIC v JAGJIVAN M. PATEL & Others (1) TLR as follows:-
“All the court has to decide at the close of the evidence in support of the charge is whether a case is made out against the accused just sufficiently to require him to make a defence, it may be a strong case or a weak case. The court is not required at this stage to apply its mind in deciding finally whether the evidence is worthy of credit or whether if believed it is weighty enough to prove the case conclusively beyond reasonable doubt. A ruling that there is a case to answer would be justified in my opinion in a border line case where the court, though not satisfied as to the conclusiveness of the prosecution evidence, is yet of the opinion that the case made out is one which on full consideration might possibly be thought sufficient to sustain a conviction.”
7. Without going into a detailed analysis of the evidence tendered having taken into account the evidence of PW1, PW4 and PW5 and looked at it against the evidence of PW7 the Government Analyst and PW9 Dr. Johansen Oduor I am satisfied, find and hold that the prosecution has established prima facie case to enable the court place the accused persons on their defence which I hereby do. The accused persons are advised of their rights under Section 306 of the Criminal Procedure Code.
DATED, DELIVERED and SIGNED at Nairobi this 26th day of July, 2017.
……………...
J. WAKIAGA
JUDGE
In the presence of:-
Mrs. Kinoti for the State
Mr. Shimaka for the 1st accused
No appearance by Wakaba for 2nd accused
Accused present
Tabitha court clerk