[2019] KEHC 3736 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MACHAKOS

CRIMINAL CASE NO. 57 OF 2013

REPUBLIC...............................PROSECUTOR

VERSUS

GODFREY ODUOR OTIENO.......ACCUSED

RULING

1. The accused in this case is charged with one count of murder c/s 203 as read with section 204 of the Penal Code. It is alleged that the accused on the 6th day of November, 2013 at Kosovo Area in Athi River District within Machakos County murdered Babuton Owuor Oduor (hereinafter referred to as the deceased). The accused pleaded not guilty to the charge.

2. In a bid to prove the charge against the accused, the prosecution called 7 (seven) witnesses then closed its case.

3. PW1 Mercy Mbula Kyenzetestified that on 6. 11. 2013 she received a call at 10 pm that the deceased had been killed so she went to the scene at Kosovo area and found the deceased had blood oozing from his mouth and nose and people wanted to lynch the accused.

4. PW2was Cosmas Musyoki Nzanga who testified that on 6. 11. 2013 he received a call that someone had strangled his son but he did not go to the scene.

5. PW3 Musau Kimulitestified that on the material day at 10 pm some men came and told him that a person was struggling with a child and later the accused was arrested.

6. PW4 Nathan KavitaMutua testified that on 8. 9.2013 he was at his plot and at 1 pm a man called Geoffrey Otieno sought for a house to rent and later came with a 5 year old boy and that on 6. 11. 2013 at 9 pm Pw4 went to collect rent and the accused indicated that he had no money and at 11 pm he heard noise and later learnt from the crowd that the accused killed the deceased and the members of the public wanted to lynch him.

7. PW5 Dr Fredrick Okinyitestified that he conducted a post mortem on the deceased and found the cause of death as strangulation.

8. PW6 Cpl Peter Macharia(retired) told the court that on 6. 11. 2013 he was on duty when he received a report of a murder and he rushed to the scene and found the deceased in a rented house bleeding from the mouth while the accused was tied with ropes and the crowd of members of the public informed him that the accused was responsible for the death of the deceased. He arrested the accused and took the body to Machakos Hospital mortuary.

9. PW7 Pc Rael Jepchirchirtold the court that she was handed over the police file in respect of this case by the investigating officer whose statement she produced as exhibit no.2.

10. The prosecution closed their case and respective counsels made submissions on Section 316 of the Criminal Procedure Code. Counsel for the state submitted that the evidence on record placed the accused at the scene of the crime as corroborated by the evidence of Pw4 who saw him on the material day. Counsel in placing reliance on Section 206 of the Penal Code submitted that malice aforethought is proven by the nature of injuries and death was proven by the post mortem report. He therefore invited the court to make a finding that all the ingredients of the offence of murder were proved and also that a prima facie case was established against the accused who ought to be put on his defence.

11. Learned counsel for the accused in placing reliance on the case of Bhatt v R (1957) EA 332-335 submitted that there is no evidence that the accused committed murder because none of the 7 prosecution witnesses witnessed the act; no weapon was produced hence he urged the court to acquit the accused under Section 306(1) of the Criminal Procedure Code.

12. At the close of the prosecution case, this court has to determine whether or not the evidence adduced has established a prima facie case against the accused. It is only if a prima facie case has been made out against the accused that he should be put to his defence. Where at the close of the prosecution case a prima facie case has not been made out, the accused would be entitled to an acquittal.

13. A prima facie case is established when the evidence adduced is such that a reasonable tribunal, properly directing its mind on the law and evidence, would convict the accused person if no evidence or explanation was set up by the defence (See Ramanlal T. Bhatt v. R. [1957] EA 332). The evidence adduced at this stage, should be sufficient to require the accused to offer an explanation, lest he runs the risk of being convicted. It is the reason why in that case it was decided by the Eastern Africa Court of Appeal that a prima facie case could not be established by a mere scintilla of evidence or by any amount of worthless, discredited prosecution evidence. The prosecution though at this stage is not required to have proved the case beyond reasonable doubt since such a determination can only be made after hearing both the prosecution and the defence.

14. There are mainly two considerations justifying a finding that there is no prima facie case made out as stated in the Practice Note of Lord Parker which was published and reported in [1962] ALL E.R 448 as follows:-

a. When there has been no evidence to prove an essential ingredient in the alleged offence, or

b. When the evidence adduced by prosecution has been so discredited as a result of cross examination, or is manifestly unreliable that no reasonable court could safely convict on it.

15. It was the submission of the learned defence counsel that the prosecution failed to adduce sufficient evidence that the accused strangled the deceased and no murder weapon was produced and therefore by extension failed to establish a prima facie case against him. Consequently, he argued that the accused should be acquitted.

16. At this stage, I have to determine whether the prosecution has led sufficient evidence capable of proving each of the ingredients of the offence of murder, if the accused chose not to say anything in his defence, and whether such evidence has not been so discredited as a result of cross examination, or is manifestly unreliable that no reasonable court could safely convict on it. For the accused to be required to defend himself, the prosecution must have led evidence of such a quality or standard on each of the following essential ingredients;

a. Death of a human being occurred.

b. The death was caused by some unlawful act.

c. That the unlawful act was actuated by malice aforethought; and lastly

d. That it was the accused who caused the unlawful death.

17. Death may be proved by production of a post mortem report or evidence of witnesses who state that they knew the deceased and attended the burial or saw the dead body. There is the post mortem report prepared by Pw5. Pw4 testified that he saw the deceased with accused and that the accused had come to look for a place of abode and in the circumstances I find that the prosecution has led sufficient evidence capable of supporting a finding that, the deceased, was Babuton Owuor Oduor even if the accused chose not to say anything in his defence.

18. The second ingredient requires evidence that the death was unlawfully caused. It is the law that any homicide is presumed to have been caused unlawfully unless it was accidental or it was authorized by law. Pw5 who conducted the autopsy established the cause of death as “asphyxia due to strangulation.” His other observations as stated in exhibit P.Ex.1 indicate injuries that are consistent with a homicide rather than a suicide. I therefore find that the prosecution led sufficient evidence capable of supporting a finding that, the deceased’s death was unlawfully caused even if the accused chooses not to say anything in his defence.

19. Malice aforethought is defined by section 203 of the Penal Code Act as either an intention to cause death of a person or knowledge that the act causing death will probably cause the death of some person. Any person who strangles an invalid clearly has the knowledge that the said invalid is fragile and the act will probably cause the death of the victim. I therefore find that the prosecution led sufficient evidence capable of supporting a finding that, the deceased’s death was caused with malice aforethought even if the accused chose not to say anything in his defence.

20. Lastly, there should be credible direct or circumstantial evidence placing the accused at the scene of the crime as an active participant in the commission of the offence. In the instant case, the only evidence adduced is circumstantial comprising the following strands; the accused at the time resided at the scene of the crime and on the day of the death of the deceased, the accused was alone with the deceased.

21. The counsel for the accused has submitted that no murder weapon was presented in court. Nevertheless, it has been held before that there is no burden on the prosecution to prove the nature of the weapon used in inflicting the harm which caused death nor is there an obligation to prove how the instrument was obtained or applied in inflicting the harm (see Solomon Mungai & Others v. Republic [1965] EA 782 at p 787). Hence this argument by the learned counsel holds no water.

22. In the circumstances, I find that if the accused considering the reasonable hypotheses that can be raised in light of the circumstantial evidence adduced in this case, if the accused chose to remain silent, this court would have evidence sufficient to convict him for the murder of the victim. I therefore find that a prima facie case has been made out requiring the accused to be put on his defence.

23. In the result I find that the prosecution has made out a prima facie case against the accused. He has a case to answer and is now called upon to tender his defence in line with the provisions of section 306(2) of the Criminal Procedure Code.

It is so ordered.

Dated and delivered at Machakos this 17th day of October, 2019.

D. K. Kemei

Judge