[2017] KEHC 9411 (KLR)
The court found that the prosecution had established a prima facie case against the accused based on the evidence presented, particularly the accused's possession of the deceased's mobile phone shortly after the murder. The court held that at this stage, it is not required to determine whether the prosecution has...
Source-derived case information.
- Citation
- [2017] KEHC 9411 (KLR)
- Parties
- Respondent: Republic; Defendant: Evans Oketch Mawere
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 97 of 2010
- Procedural Posture
- Criminal Case / Ruling on Case to Answer After Close of Prosecution Case
- Outcome
- accused put on his defence; prosecution established prima facie case
- Judges
- J Wakiaga
- Legal Topics
- Murder, Prima Facie Case, Recent Possession, Burden of Proof, Case to Answer
- 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
Respondent
Evans Oketch Mawere
Defendant
Procedural Posture
Criminal Case / Ruling on Case to Answer After Close of Prosecution Case
Legal Issues
- 1 Whether the prosecution has established a prima facie case against the accused to warrant putting him on his defence.
- 2 Whether the doctrine of recent possession applies to the accused's possession of the deceased's mobile phone.
- 3 Whether contradictions in prosecution witness testimonies undermine the prosecution's case.
Ratio Decidendi
The court found that the prosecution had established a prima facie case against the accused based on the evidence presented, particularly the accused's possession of the deceased's mobile phone shortly after the murder. The court held that at this stage, it is not required to determine whether the prosecution has proved its case beyond reasonable doubt, but only whether there is sufficient evidence to require the accused to make a defence. The court was satisfied that the threshold for a case to answer had been met, and accordingly put the accused on his defence, advising him of his rights under Section 300 of the Criminal Procedure Code.
Court Disposition
accused put on his defence; prosecution established prima facie case
Orders
- The accused is put on his defence.
- The accused is advised on his rights under Section 300 of the Criminal Procedure Code.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
CRIMINAL DIVISION
CRIMINAL CASE NO. 97 OF 2010
REPUBLIC...............................................RESPONDENT
VERSUS
EVANS OKETCH MAWERE...........................ACCUSED
RULING
1. The accused EVANS OKETCH MAWERE is 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 the 2nd day of June, 2010 at Ngai II Estate in Huruma within Nairobi Area jointly with others not before court murdered ALPHONCE NGUI MATIVO.
2. He pleaded not guilty to the said charges and on 25/5/2011 his trial commenced before Justice N.R.O Ombija as he then was who heard the evidence of eleven witnesses and partly heard PW12 before he retired from the Judiciary and upon compliance with the provisions of Section 200 of Criminal Procedure Code, the matter proceeded before me when PW12 CPL COSMAS KATINDI completed his evidence in chief and was cross examined by the Advocate for the defence.
SUBMISSIONS
3. At the close of the prosecution case, the parties herein were invited to make their submissions. On whether the prosecution has established a prima facie case to enable the court place the accused person on his defence,
PROSECUTION’S SUBMISSIONS
It was submitted that the deceased was last seen alive at Valley View Bar and Restaurant on the 2nd June, 2010 and that his body was recovered on 3rd June, 2010 along Juja House Street on the grass along the road and the cause of his death was ascertained to be due to a stab wound into his heart. It was submitted that the accused was found to be in possession of the deceased mobile phone immediately after the fatal attack on 4th June, 2010 and therefore on the doctrine of recent possession the prosecution had established a prima facie case against him.
DEFENCE SUBMISSIONS
4. On behalf of the accused it was submitted that the deceased, as the evidence tendered, was last seen in the company of PW1 FESTUS MUSYOKA MADHUVA, PW2 JOSEPH KIMEU NDEMANGE and PW8 CAROLINE KANINI MUSYOKAwhose testimonies were contradictory. It was further submitted that the ownership of the said mobile phone the subject matter of the doctrine of recent possession connecting the accused with the offence herein was not established in support of which the case of BONIFACE MUGENDI KINYUA v REPUBLIC COURT OF APPEAL AT NYERI CR. APPEAL NO. 468/2010 was submitted.
5. It was therefore submitted that the prosecution had failed to establish a prima facie case and to put the accused on his defence would be to get the accused fill the gaps in the prosecution case and reference was made to the following cases:-
1. ANTHONY NJUE NJERU v REPUBLIC (2006) eKLR
2. RAMANLAL TRAMBAKLAL BHATT v REPUBLIC Criminal Appeal No. 76 of 1957 EALR 332.
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. From the evidence tendered before the court and without saying much I am satisfied and find that the prosecution has established a prima facie case to enable the court put the accused on his defence which I hereby do. The accused is therefore advised on his rights under Section 300 of Criminal Procedure Code.
DATED, DELIVERED and SIGNED at Nairobi this 19th day of September, 2017.
…………………………
J. WAKIAGA
JUDGE
In the presence of:-
Mr. Meroka for the State
Miss Kilonzo for the accused
Accused present
Tabitha court clerk