[2020] KEHC 1067 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

(Coram: Odunga, J)

CRIMINAL CASE NO. 10 OF 2014

REPUBLIC.......................................................PROSECUTION

VERSUS

GLADYS NTHENYA REUBEN..............................ACCUSED

RULING

1. The accused herein was charged with the offence of murder contrary to section 203 as read with section 2014 of the Penal Code, the particulars being that on the night of 30th and 31st day of January 2014 at Kasina Mlolongo Township within Athi River District in Machakos County, murdered Stacy Wavinya (hereinafter referred to as the deceased).

2. In support of the case, the prosecution called three witnesses.

3. Pw1, Dr Okinyi, testified on 13th February, 2014, a post mortem examination was conducted on the body of the deceased after which he filled the same. According to his findings, the deceased had no bodily injuries. However, the digestive system of the deceased had strong smell of a chemical substance liquid 30cc in the stomach. As a result, he formed an opinion that the cause of death of the deceased was poisoning and he exhibited his report.

4. PW2, the government analyst received an exhibit memo from Mlolongo police station. He also received the items marked as item A, B and K being stomach, blood and a plastic bottle respectively. The items marked A & B were labelled deceased “Stacy Wavinya”. In his report he detected Diazinon, an organophosphorus pesticide in the stomach sample of the deceased and in the plastic bottle. He added that organophosphorus pesticides are poisonous and may be harmful if ingested. He produced his report as exhibit.

5. Pw3, PC Stephen Ngeta, was on 31st January, 2014 on duty as a crime standby at Mlolongo Police Station when he was informed by I.P Musanya that there was a crime scene of murder at Kasina area, Mlolongo township. Together with other two officers, they proceeded to the scene and upon arrival, they found the body of the deceased lying on the ground. The accused was unconscious 50 meters away from the body. The scene was processed and the body of the deceased taken to Machakos Level 5 District Mortuary. The accused was also taken to the same facility and was admitted for eight days then discharged.

6. On the 13th of February 2014, a postmortem was performed on the body of the deceased and the pathologist confirmed that the cause of death was poisoning. Some exhibits were taken to the government chemist for analysis and the analyst in his report confirmed that Diazinon, an organophosphorus pesticide was found in the samples which is poisonous pesticide and harmful if ingested. The witness further stated that the eyewitness (Nduku Waiyaki) passed on and therefore she could not tender her evidence. The other witness who was the father to the deceased (Andrew Mutua) could not be traced by the investigations officer as he was a truck driver and left no contacts.

7. I have considered the material on record as well as the submissions made on behalf of the accused in this ruling where the court is being called upon to decide whether or not the prosecution has made out a prima facie case against the accused that would warrant this court to call upon them to give their defence. In other words, does the accused have a case to answer? In Republic vs. Abdi Ibrahim Owl [2013] eKLRa prima facie case was defined as follows: -

“Prima facie” is a Latin word defined by Black’s Law Dictionary, 8th Edition as “Sufficient to establish a fact or raise a presumption unless disproved or rebutted”. “Prima facie case” is defined by the same dictionary as “The establishment of a legally required rebuttable presumption”. To digest this further, in simple terms, it means the establishment of a rebuttal presumption that an accused person is guilty of the offence he/she is charged with. In Ramanlal Trambaklal Bhatt v. R [1957] E.A 332 at 334 and 335, the court stated as follows:

“Remembering that the legal onus is always on the prosecution to prove its case beyond reasonable doubt, we cannot agree that a prima facie case is 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.” This is perilously near suggesting that the court would not be prepared to convict if no defence is made, but rather hopes the defence will fill the gaps in the prosecution case. Nor can we agree that the question whether there is a case to answer depends 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…It is 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.”

8. The question that this court has to deal with and answer at this stage is therefore whether based on the evidence before this Court, the Court after properly directing its mind to the law and the evidence may, as opposed to will, convict if the accused chose to give no evidence. It was therefore held in Ronald Nyaga Kiura vs. Republic [2018] eKLR wherein paragraph 22 it is stated as follows:

“It is important to note that at the close of prosecution, what is required in law at this stage is for the trial court to satisfy itself that a prima facie has been made out against the accused person sufficient enough to put him on his defence pursuant to the provisions of Section 211 of the Criminal Procedure Code. A prima facie case is established where the evidence tendered by the prosecution is sufficient on its own for a court to return a guilty verdict if no other explanation in rebuttal is offered by an accused person. This is well illustrated in the cited Court of Appeal case of RAMANLAL BHAT -VS- REPUBLIC [1957] EA 332. At that stage of the proceedings the trial court does not concern itself to the standard of proof required to convict which is normally beyond reasonable doubt. The weight of the evidence however must be such that it is sufficient for the trial court to place the accused to his defence.”

9. In Republic vs. Abdi Ibrahim Owl [2013] eKLRa prima facie case was defined as follows:-

“Prima facie” is a Latin word defined by Black’s Law Dictionary, 8th Edition as “Sufficient to establish a fact or raise a presumption unless disproved or rebutted”. “Prima facie case” is defined by the same dictionary as “The establishment of a legally required rebuttable presumption”. To digest this further, in simple terms, it means the establishment of a rebuttal presumption that an accused person is guilty of the offence he/she is charged with. In Ramanlal Trambaklal Bhatt vs. R [1957] E.A 332 at 334 and 335, the court stated as follows:

“Remembering that the legal onus is always on the prosecution to prove its case beyond reasonable doubt, we cannot agree that a prima facie case is 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.” This is perilously near suggesting that the court would not be prepared to convict if no defence is made, but rather hopes the defence will fill the gaps in the prosecution case. Nor can we agree that the question whether there is a case to answer depends 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. It is true, as WILSON, J said, that the court is not required at that 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 determination can only properly be made when the case for the defence has been heard. It is 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.”

10. Oxford Companion of Law at pg 907 defines “prima facie” in the following terms:

“A case which is sufficient to all an answer while prima facie evidence which is sufficient to establish a fact in the absence of any evidence to the contrary is not conclusive.”

11. That there is a danger in making definitive findings at this stage, especially where the Court finds that there is a case to answer is not farfetched and the reasons for not doing so are obvious. As was appreciated by Trevelyan and Chesoni, JJ in Festo Wandera Mukando vs. The Republic [1980] KLR 103:

“…we once more draw attention to the inadvisability of giving reasons for holding that an accused has a case to answer. It can prove embarrassing to the court and, in an extreme case, may require an appellate court to set aside an otherwise sound judgement. Where a submission of “no case” is rejected, the court should say no more than that it is. It is otherwise where the submission is upheld when reasons should be given; for then that is the end to the case or the count or counts concerned.”

12. In my view, where clearly the prosecution’s case as presented even if it were to be taken to be true would still not lead to a conviction such as where for example an accused has not been identified or recognised and there is absolutely no evidence whether direct or circumstantial linking him to the offence it would be foolhardy to put him on his defence. There is no magic in finding that there is a case to answer and a case to answer ought only to be found where the prosecution’s case, on its own, may possibly, though not necessarily, succeed. An accused person should not be put on his defence in the hope that he may prop up or give life to an otherwise hopeless case or a case that is dead on arrival. It was therefore held by the Court of Appeal decision in the case of Anthony Njue Njeru vs. Republic Crim. App. No. 77 of 2006, [2006] eKLRthat:

“Taking into account the evidence on record, what the learned Judge said in his ruling on no case to answer, the meaning of a prima facie case as stated in Bhatt’s case…we are of the view that the appellant should not have been called upon to defend himself as all the evidence was on record. It seems as if the appellant was required to fill in the gaps in the Prosecution evidence. We wish to point out here that it is undesirable to give a reasoned ruling at the close of the Prosecution case, as the learned Judge did here, unless the Court concerned is acquitting the accused.”

13. I therefore agree with the position adopted by the High Court of Malaya in Criminal Appeal No. 41LB-202-08/2013 – Public Prosecution vs. Zainal Abidin B. Maidin & Another that:

“It is also worthwhile adding that the defence ought not to be called merely to clear or clarify doubts. See Magendran a/l Mohan v PublicProsecutor [2011] 6 MLJ 1; [2011] 1 CLJ 805. Further, in

Public Prosecutor v Saimin & Ors [1971] 2 MLJ 16 Sharma J had occasion to observe:

‘It is the duty of the Prosecution to prove the charge against the accused beyond reasonable doubt and the court is not entitled merely for the sake of the joy of asking for an explanation or the gratification of knowing what the accused have got to say about the prosecution evidence to rule that there is a case for the accused to answer.’”

14. The court in Republic vs. Prazad [1979] 2A CRIM R 45, King CJ held the very same standard on a prima facie case in the following terms:

“I have no doubt that a tribunal, which is judge of both law and fact, may dismiss a charge at any time after the close of the case for the prosecution, notwithstanding that there is evidence upon which the defendant could lawfully be convicted, if that tribunal answers that the evidence is so lacking in weight, and reliability that no reasonable tribunal could safely convict on it.”

15. In this case the evidence on record is that a report was made at Mlolongo Police Station of the death of the deceased and upon the receipt thereof, PW3 proceeded to the scene where he found the body of the deceased. Not far from the body, the accused person lay unconscious. Upon the post mortem being conducted on the body of the deceased, it was found that the digestive system of the deceased had strong smell of a chemical substance liquid 30cc in the stomach and as a result, PW1 formed an opinion that the cause of death of the deceased was poisoning. This opinion was confirmed by PW2 who analysed the substance that was obtained from the body of the deceased.

16. At the close of the case, it is clear that there is no evidence as to who actually killed the deceased. None of the witnesses who testified was present before the deceased passed away. The only evidence linking the accused with the death of the deceased was that the accused was found lying unconscious not far from where the deceased’s body was found.

17. The general principle of law on homicide cases is that it is important that the prosecution proves death, the cause of death and also that the death was caused by the accused. In this case, we do not even know whether the poison in question was ingested by the deceased himself and we do not know the circumstances under which the accused was found unconscious. Even if we are to believe that there was an attempt on the life of the accused, it cannot be determined, based on the evidence on record that the same was as a result of an attempt by the accused to take her own life. For all we know, it may well be that the same was induced by the deceased.

18. In the premises, it would be hopeless and completely unnecessary to place the accused person on her defence since the evidence before this court even if true cannot certainly lead to the accused person being convicted even if she decides not to say anything. It is not for her to adduce the evidence to explain who administered the poison to the deceased and the circumstances under which she found herself unconscious without more.

19. It follows that at the close of the prosecution case no prima facie case has been made out to warrant placing the accused person on her defence. Pursuant to section 306(1) of the Criminal Procedure Code I find the accused person not guilty of the offence with which she has been charged. She is accordingly acquitted and I direct that she be released forthwith unless otherwise lawfully held.

20. It is so ordered.

Ruling read, signed and delivered in open Court at Machakos this 14th day of December, 2020.

G V ODUNGA

JUDGE

In the presence of:

Mr Muia for Mrs Nyaata for the Accused

Mr Ngetich for the State

CA Geoffrey