[2022] KEHC 1323 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAROK

CRIMINAL CASE NO. 11 OF 2019

(CORAM: F.M. GIKONYO J.)

REPUBLIC…………....…...….........................PROSECUTOR

-VERSUS-

ISAIAH KIPKORIR ROTICH…………................ACCUSED

RULING

Case to answer

[1] The accused is charged with the murder of Mathias Korir Contrary to Section 203 as read with Section 204 of the Penal Code. The particulars are that the accused committed the offence on 13th May 2019 at Simatwet village in Narok North South sub- County within Narok County.

[2] He pleaded not guilty to the charge. To prove the case against him, the prosecution called and examined a total of nine (9) witnesses. Some of the witnesses are relatives to the deceased.

[3] The facts of the prosecution’s case are that: - PW1, Milka Kosgei, sister to the deceased was at her kitchen resting since she had given birth. She heard a commotion of her chairs in the big house. She went out and opened the door. She saw the accused. She then saw the accused and deceased. She saw blood oozing from the neck at the chest area of the deceased. She was shocked when she saw the accused with a knife in his hands and collapsed. Later that day the officers from crime scene Narok visited the scene, collected evidence and documented the crime scene. DCI officers from Chepalungu arrested the accused and called the DCI Ololunga to come and re arrested him since the crime was committed at Ololunga jurisdiction. Police officers from Narok South collected the body from the scene of crime and took it to Narok Hospital Mortuary.

[4] At the close of which both the prosecution and the defence opted to make written submissions as to whether the prosecution had established prima facie case to enable the court place the accused on its defence and left it to the court to make determination there on based on the evidence on record. However, the defence failed to file their submissions.

[5] The prosecution submitted that the prosecution had called sufficient evidence to warrant the accused persons being put on their defence. They relied on the evidence on record, Section 107 (1) of the Evidence Act, Section 203 of the Penal Code and the cases of Ramanla Tramaklal Bhatt V R [1957] EA 332, Republic V Mohammed Dadi Kokanee And 7 Others [2014] eKLR,and Republic V Susan Kahindi , [2010] eKLR

[6] The accused faces a charge of murder. Essential elements of the offence to be proved are: -

a. The fact and the cause of death

b. That the said death was unnatural

c. That it was carried by an act of omission and commission on the part of the accused person

d. That it was caused with malice aforethought as defined under section 206 of the penal code.

[7] Within that legal framework, at this stage of the proceedings, the court is required to establish whether a prima facie case has been made out to put the accused to his defence. According to the case of Ramanlal Trambaklal Bhatt V Republic (1957) EA 332 :-

… It may not be easy to define what is meant by 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 scope of the exercise in a no case to answer was properly stated by J.B. Ojwang J. (as he then was) in the case of Republic V Karanja Kiria Cr.Case No.13 Of 2004 Nairobi [2009] eKLR as follows:-

“The question at this stage is not whether or not the accused is guilty as charged but whether there is such cogent evidence of his connection with the circumstances in which the killing of the deceased occurred, that the concept of prima facie case dictates as a matter of law that an opportunity be created by this court for the accused to state his own case regarding the killing. The governing law on this point is well settled . . .

The Court of Appeal Criminal Appeal No. 77 of 2006, the Court of Appeal expressed that too detailed analysis of evidence, at no case to answer stage is undesirable if the court is going to put the accused onto his defence as too much details in the trial court’s ruling could then compromise the evidentiary quality of the defence to be mounted.”(Emphasis added).

[9] Bearing in mind this limitation, I have carefully considered the evidence and it has been established that the deceased died not of natural causes. See the evidence byPW6 -Dr. Yegon Stanley who conducted a postmortem at Narok County Referral Hospital on the body of the deceased. He produced post mortem report dated 20/5/2019. It was his evidence that the deceased had a deep cut on the right anterior neck. The wound was about 6 cm deep and cut of 7 cm. The wind pipe had been severed and so was carotid artery that supplies head and neck with blood. He opined that the cause of death was hemorrhage secondary to stab wound on anterior. This therefore confirmed that it was unnatural death.

[10] There was other evidence by prosecution witnesses-PW1- Milka Koskei, and PW2 Wesley Kipkorir Bett- which connected to the death. Accordingly, prima facie case has been established against the accused which warrants him be put on his defence.

[11] By reason of the matter stated herein, the accused person is hereby put on his defence and to exercise his rights under Section 306(2) and 307 of the Criminal Procedure Code. The court is also acutely aware of his constitutional right under Article 50 of the Constitution; the right to remain silent.

[12] The accused through the advice of his advocate on record is now called upon, if he so wishes, to intimate to the court the manner he wishes to defend himself. It is so ordered.

Dated, Signed and Delivered at Narok this 21st Day of March, 2022 through Microsoft Teams Online Application.

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F. M. GIKONYO

JUDGE

In the presence of:

1. Mr. Okinyi for accused

2. Mr. Karanja for the Republic

3. Mr. Kasaso CA