[2022] KEHC 2598 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAKURU

CRIMINAL CASE NUMBER 29 OF 2019

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

VERSUS

JAMES MBAI.................................................................................ACCUSSED

R U L I N G

1. The Criminal Procedure Code at Section 306 provides for what should happen in a murder trial at the close of the case for the prosecution. It states:

“(1) 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 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.

(2) When the evidence of the witnesses for the prosecution has been concluded, the court, if it considers that there is evidence that the accused person or any one or more of several accused persons committed the offence, shall inform each such accused person of his right to address the court, either personally or by his advocate (if any), to give evidence on his own behalf, or to make an unsworn statement, and to call witnesses in his defence, and in all cases shall require him or his advocate (if any) to state whether it is intended to call any witnesses as to fact other than the accused person himself; and upon being informed thereof, the judge shall record the fact.”

2. Prima facie case has been defined in the case of Ramanlal Trambaklal Bhatt vs Republic(1957) EA 332 as follows:-

“Remembering that the legal onus is always on the prosecution to prove its case beyond reasonable doubt, we cannot argue that a prima facie 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 could 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 argue 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 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.”

3. I am alive to the warning inFesto Wandera Mukando vs The Republic[1980] KLR 103where the court observed that:

“…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.”

4. Section 306 of the Criminal Procedure Code requires the court to consider the evidence before arriving at a decision.

5. In this case the accused person, James Mbai, is charged with Murder contrary to Section 203 as read with Section 204 of the Penal Code. It is alleged that on the 28th day of March, 2019 at Nakuru West Sub-County within Nakuru County, he murdered Geoffrey Onyango Otieno.

6. On 24th July, 2019, the accused person pleaded not guilty to the charge. The prosecution called four (4) witnesses to prove their case.

7. PW1, Stephen Otieno Oroka, father to the deceased, testified that on 28th March, 2018 at around 7. 30 p.m., his younger brother rang and told him that the accused had a quarrel with the deceased. He left Shabab and proceeded to the scene at Ponda Mali where he witnessed the accused person with boda boda riders beating the deceased herein using an iron rod. He summoned a taxi and took the deceased to Provincial General Hospital where he died at midnight while undergoing treatment. Thereafter he went to report the incident at Rhonda Police Post.

8. PW2, John Onyango Odindo, a neighbor to the deceased recalled that on the fateful day while at Ponda Mali area he met and witnessed six(6) people including the accused person beating the deceased using a rungu and an iron rod. He proceeded and made a report about the incident to the deceased’s mother. He also testified that at the time he found the deceased being beaten PW1 was not present at the scene.

9. PW3, Sergeant Julius Kurgat, testified that on 28th March, 2018 at about 2135 hours the accused person came and reported that when he was escorting one of his friends to the main road at Mzee Moja he met a gang of three people who confronted him, a woman who was passing by screamed and the members of the public came, pursued the thugs and managed to get hold of one of them whom they beat and left at the scene.

10. He said he proceeded in company of PC Maraga to the scene but they did not find anybody. Upon inquiry, people nearby apprised them that deceased’s colleague came back to the scene and took the deceased to unknown place.

11. The day on 29th March, 2018 at about 2pm, PW1 came and made a report to the effect that the deceased was attacked by people in company of the accused whereby he sustained injuries and was taken to the hospital where he died while undergoing treatment.

12. He prepared an inquest file and forwarded it to DCIO and the state counsel. Subsequently the inquest file was returned with directions to charge the accused person with the instant offence.

13. On cross examination, he stated that when he visited the scene they did not find any murder weapon. He stated that the PW1 reported that the deceased was attacked by the mob in company of the accused and that nobody saw the accused attack the deceased. He said the witness statements formed the basis under which the accused person was arrested.

14. PW4, Dr. Titus Ngulungu, a pathologist, testified that on 17th April, 2018 he conducted a postmortem on the deceased’s body. Externally there were features of lack of oxygen before death, cyanosis, swelling on left head, bruises of head, limbs and chest. He said that bruises were irregular meaning different objects were used to cause them. That the bruises were multiple measuring between 20mm to 100mm in length.

15. He stated that internally, there were bruises on chest wall, left chest and lungs were collapsed. That on the left side of the head there was collection of blood, scalp hematoma between skin and skull. Also there was left epidermal hematoma, brain contusion, and mass effect on the brain which caused brain suffocation. He formed an opinion that Cause of death was as a result of severe head injury attended by epidural hematoma and multiple blunt force traumas throughout the body keeping with fatal assault. He produced a postmortem report as P. Exhibit 1

16. The accused filed his submissions dated 6th October 2021 on 14th October, 2021 through his advocate Mr. Orege.

17. It was submitted that the prosecution failed to establish a prima facie case against him. That the evidence of PW1 & PW2 were inconsistent and or contradictory as to what transpired on the material date and that the investigation conducted by PW3 was inconclusive in that no witness present at the scene was interrogated and alleged murder weapon was not recovered.

18. It was further his submissions that there was no eye witness to prove that he met with the deceased on the night of 28th March, 2018.

19. He prayed that this court should acquit him.

20. On 2nd November 2021, the prosecution made oral submissions trough Ms. Murunga that a prima facie case against the accused person was established to warrant placing him on his defence. Reliance was placed on the case of Republic vs Abdi Abraham [2013] eKLR.

21. It was also submitted that the evidence of PW1 showed the deceased had been beaten, he had witnessed the beating, the deceased was taken to the hospital where he died. That PW2 knew the accused well and it was established that the accused was responsible for the injuries inflicted on the deceased that led to his death. Further that the murder weapon could not be recovered and subjected to forensic examination since the crowd had already interfered with the scene by the time the Investigating Officer reached there.

22. From the evidence before me, there is no doubt that the deceased died. PW4, the pathologist confirmed that the cause of death was as a result of severe head injury attended by epidural hematoma and multiple blunt force traumas throughout the body keeping with fatal assault. PW1, PW2 and PW3 gave testimony that not only placed the accused at the scene but also of his involvement in the assault upon the deceased.

23. In view of the foregoing I am of the view which I hold that the prosecution has established a prima face case to warrant the accused person to be put on his defence as per section 306(2) of the Criminal Procedure Code.

DATED, SIGNED AND DELIVERED THIS 8TH DAY OF FEBRUARY, 2022.

MUMBUA T. MATHEKA

JUDGE

In the presence of:-

CA Edna

Mr Kenda holding brief for Ms Odhiambo

Accused present

Ms Murunga for state