[2017] KEHC 5815 (KLR)
The court found that the prosecution's evidence, including eyewitness testimony placing the accused with the deceased, the recovery of sandals linked to the accused, and the postmortem report indicating death by strangulation, was sufficient to establish a prima facie case of murder. The court emphasized that at...
Source-derived case information.
- Citation
- [2017] KEHC 5815 (KLR)
- Parties
- Applicant: Republic; Defendant: Jacob Kithome; Defendant: Francis Ngui Mwenga
- Court
- High Court
- Court Station
- High Court at Kitui
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 13 of 2015
- Procedural Posture
- Criminal Case / Ruling on Prima Facie Case at Close of Prosecution's Case
- Outcome
- Accused persons to be put on their defence.
- Judges
- LN Mutende
- Legal Topics
- Murder, Prima Facie Case, Burden of Proof, Criminal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Jacob Kithome
Defendant
Francis Ngui Mwenga
Defendant
Procedural Posture
Criminal Case / Ruling on Prima Facie Case at Close of Prosecution's Case
Legal Issues
- 1 Whether the prosecution has established a prima facie case against the accused persons to warrant their being put on their defence.
- 2 Whether the evidence adduced is sufficient to require the accused to make a defence.
Ratio Decidendi
The court found that the prosecution's evidence, including eyewitness testimony placing the accused with the deceased, the recovery of sandals linked to the accused, and the postmortem report indicating death by strangulation, was sufficient to establish a prima facie case of murder. The court emphasized that at this stage, it is not required to determine the conclusiveness of the evidence, but only whether there is enough evidence to require the accused to make a defence. Accordingly, the accused were called upon to defend themselves pursuant to Section 306 of the Criminal Procedure Code.
Court Disposition
Accused persons to be put on their defence.
Orders
- The accused are called upon to defend themselves pursuant to Section 306 of the Criminal Procedure Code.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KITUI
CRIMINAL CASE NO. 13 OF 2015
REPUBLIC..................................................PROSECUTOR
VERSUS
JACOB KITHOME......................................1ST ACCUSED
FRANCIS NGUI..........................................2ND ACCUSED
R U L I N G
1. Jacob Kithomeand Francis Ngui Mwenga,herein after the 1st and 2nd Accused respectively are charged with the offence of Murdercontrary to Section 203as read with Section 204of the Penal Code (Cap. 63), Laws of Kenya.Particulars of the offence are that on the 6thday of April, 2008 at Nzikani Village, Musavani LocationinKyuso Districtwithin the Eastern Provincejointly murdered Enoch Mutemi Maithya(Deceased).
2. Brief facts of the case are that on the 5thday of April, 2008,PW1 Solomon Mwendwaaccompanied his father, the Deceased to Kaningowhere elders were to arbitrate upon a land dispute between the Deceased and his cousin one Mwangangi.The case was adjourned as some elders were absent. On their way home they encountered both Accused. PW1 left the Deceased with the two. Thereafter PW2 Justus Mulanga Musyokaand PW3 Muthui Musyokawent on a drinking spree with the Deceased and both Accused. Having consumed alcohol to their satisfaction they left going home. However, the Deceased did not reach home. His body was found on a path where PW1 left him with the two Accused. Some shoe prints were noted which led them to the home of the 2nd Accused. Some tyre sandals popularly referred to as ‘Akala shoes’ were subsequently recovered hidden in a box. The Accused were arrested.
3. A postmortem conducted on the body of the Deceased revealed that the cause of death was asphyxia secondary to strangulation.
4. To be put on their defence, the Prosecution had a duty of establishing a prima faciecase against the Accused. In the case of Republic vs. Jagjvan M. Patel and Others, TLR 85the Court stated thus:
“All the court has to decide at the close of evidence of the charge is whether a case made out against the Accused just sufficiently requires him to make a defence, it may be a strong case or it may be 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 would be justified, in my opinion, in a borderline case where the court, though not satisfied as to conclusiveness of the Prosecution evidence, is yet of opinion that the case made out is one which on full consideration might possibly be thought sufficient to sustain a conviction.”
5. At the close of the Prosecution’s case evidence adduced by the Prosecution witnesses was sufficient to require the Accused to be put on their defence. I therefore call upon them to defend themselves pursuant to the provision of Section 306of the Criminal Procedure Code.
6. It is so ordered.
Dated, Signed and Deliveredat Kitui this 20thday of April,2017.
L. N. MUTENDE
JUDGE