[2022] KEHC 452 (KLR)

Republic v Gitari & another (Criminal Case 32 of 2018) [2022] KEHC 452 (KLR) (12 May 2022) (Ruling)

Neutral citation: [2022] KEHC 452 (KLR)

Republic of Kenya

In the High Court at Chuka

Criminal Case 32 of 2018

LW Gitari, J

May 12, 2022

Between

Republic

Prosecution

and

Antony Mugambi Gitari

1st Accused

Kennedy Kirimi Nkonge

2nd Accused

Ruling

1. The accused persons herein jointly face the charge of murder contrary to Section 203 as read with Section 204 of the Penal Code(Cap 63 of the Laws of Kenya. It was alleged that on 26th November 2018 at Kandugu location, Maara sub-county within Tharaka Nithi County, the accused persons jointly with other not before court unlawfully murdered Micheni Reche.

2. The accused person denied the charge after being found fit to stand trial.

3. The prosecution called a total of 6 (six) witnesses in support of its case against both accused persons. On 30th March 2022, the prosecution finally closed its case.

4. The question for this court to determine at this stage is whether the prosecution has made out a prima facie case against the accused persons sufficient enough to warrant this court to put them on their defence pursuant to the provisions of Section 211 of the Criminal Procedure Code. In other words, this court is to decide whether the prosecution’s case, may possibly succeed on its own, though not necessarily.

5. Several authorities have established what constitutes a prima facie case. The leading authority is the case of Ramanlal T. Bhatt -v- Republic [1957] E.A. 332 where the court stated as follows:(i)The onus is on the prosecution to prove its case beyond reasonable doubt and a prima facie case is not made out if at the close of the prosecution, the case is merely one which on full consideration might possibly be thought sufficient to sustain a conviction.(ii)The question whether there is a case to answer cannot depend only on whether there is 'some' evidence irrespective of its credibility or weight sufficient to put the accused on his defence. A mere scintilla of evidence can never be enough; nor can any amount of worthless discredited evidence.”

6. In this case, it is this court’s duty to evaluate the testimony of each of the six (6) prosecution witnesses against the charge of murder against the accused persons. Having considered the testimonies of the said witnesses together with the exhibits that were produced before this court, it is my view that the said evidence meets the threshold that was set out in the case of Bhatt -v- R(supra) in respect of determining whether an accused has a case to answer.

7. No reasons need to be given for this finding at this stage as this court is yet to hear the explanations of the accused persons. In addition, it is trite that giving reasons for this finding at this point would amount to determining the case without giving the accused persons an opportunity to be heard (See: Republic -v- Samuel Karanja Kiria[2009] eKLR).

8. It is therefore sufficient at this stage for this court to inform the accused persons whether they have a case to answer and give them a chance to be heard.I find that the accused have a case to answer and will be put on their defence as provided under Section 306 of the Criminal Procedure Code which provides as follows:(1)When the evidence of the witnesses for the prosecution has been concluded, the court, if it considers that there is no evidence that the accused or any one of several accused committed the offence shall, after hearing, if necessary, any arguments which the advocate for the prosecution or the defence may desire to submit, record a finding of not guilty.(2)When the evidence of the witnesses for the prosecution has been concluded, the court, if it considers that there is evidence that the accused person or any one or more of several accused persons committed the offence, shall inform each such accused person of his right to address the court, either personally or by his advocate (if any), to giveevidence on his own behalf, or to make an unsworn statement, and tocall witnesses in his defence, and in all cases shall require him or his advocate (if any) to state whether it is intended to call any witnesses as to fact other than the accused person himself; and upon being informed thereof, the judge shall record the fact. (3) If the accused person says that he does not intend to give evidence or make an unsworn statement, or to adduce evidence, then the advocate for the prosecution may sum up the case against the accused person; but if the accused person says that he intends to give evidence or make an unsworn statement, or to adduce evidence, the court shall call upon him to enter upon his defence.”

DATED, SIGNED AND DELIVERED AT CHUKA THIS 12TH DAY OF MAY 2022. L.W. GITARIJUDGE