[2023] KEHC 25475 (KLR)

Republic v James alias Oloo (Criminal Case E007 of 2023) [2023] KEHC 25475 (KLR) (15 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25475 (KLR)

Republic of Kenya

In the High Court at Kisumu

Criminal Case E007 of 2023

RE Aburili, J

November 15, 2023

Between

Republic

Prosecutor

and

Kelly Otieno James Alias Oloo

Accused

Ruling

1. The accused person herein Kelly Otieno James alias Oloo is charged with the offence of Murder contrary to Section 203 as read with section 204 of the Penal Code.

2. Particulars of the charge as per the Information dated April 4, 2023are that on the 20th day of March 2023 at Korando ‘B’ Sub-location in Kisumu West Sub-county within Kisumu County, jointly with others not before court, they murdered Dan Otieno Ouma.

3. The accused was mentally examined on April 12, 2023and found to be mentally fit to stand trial. He therefore took plea of Not Guilty on April 17, 2023and was granted bond upon which he was released on cash bail of Kshs.100,000 on May 29, 2023.

4. The hearing commenced on May 24, 2023. The Prosecution had called ten (10) witnesses and closed its case on October 16, 2023.

5. The court is now left to decide on whether the prosecution has established a prima facie case against the accused person to warrant him to be placed on his defence.

6. The burden of proof lies on the prosecution throughout the trial without shifting to the accused person who has no duty to prove his innocence or exonerate himself.

7. The standard of proof required in criminal cases is that of beyond reasonable doubt. The accused person is presumed innocent until proven guilty and he is under no legal duty to testify in defence even if placed on his defence as his right to remain silent; to adduce and challenge evidence adduced by the prosecution and not to give self-incriminating evidence is guaranteed under article 50 (2) of the Constitution.

8. At this stage, however, the prosecution is not expected to prove the guilt of the accused person beyond reasonable doubt. The legal measure is that of establishing a prima facie case.

9. A prima facie case is established where the evidence tendered by the prosecution witnesses is sufficient on its own for a court of law to return a guilty verdict even if the accused person was to exercise his constitutionally guaranteed right to remain silent.

10. Section 306(1) of the Criminal Procedure Code stipulates that:“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 the several or any one of the 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.”

11. A case to answer has been defined as ‘a case where if the accused opts to keep quiet, the evidence of the prosecution should be such that a conviction will result. See Republic v Joseph Shitandi & Another [2014] eKLR.

12. This is not to say that the accused is guilty of the offence charged but whether there is cogent evidence of his connection with the circumstances in which the killing of the deceased occurred.

13. Thus the concept of prima facie case dictates as a matter of law that an opportunity is created by the court for the accused to state his own case regarding the killing. See Republic vs Samuel Karanja Kiria [2009] eKLR cited in Republic v Stephen Chomba Kamau [2021] eKLR.

14. In the case of Republic v Samuel Karanja Kiria CR. Case No.13 of 2004 Nairobi[2009] eKLR, J.B.Ojwang J, (as he then was) had this to say on prima facie case: -“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).

15. From my assessment of the evidence adduced by the ten (10) prosecution witnesses in this case, I am satisfied that a prima facie case has been made to warrant the accused being placed on his defence.

16. Accordingly, Kelly Otieno James alias Oloo is hereby found with a case to answer and is hereby placed on his defence, as stipulated in section 306(2) of the Criminal Procedure Code.

17. Accordingly, the accused person Kelly Otieno James alias Oloo is informed of his rights to address the court either personally or by his counsel to elect what mode of defence he prefers and his rights under article 50(2) (i) (j) (k) of the Constitution as read with section 306(2) of the Criminal Procedure Code are hereby explained to him in Dholuo language through interpretation by the Court Assistant.

18. I so order.

DATED, SIGNED AND DELIVERED AT KISUMU THIS 15TH DAY OF NOVEMBER, 2023R. E. ABURILIJUDGE