[2017] KEHC 9492 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CRIMINAL DIVISION

HIGH COURT CRIMINAL CASE NO. 73 OF 2011

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

VERSUS

JOHN KARARU WANGUI........................ACCUSED

RULING

1. The accused JOHN KARARU WANGUI was charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code the particulars of which were that on 18th September, 2011 at Mukaru Pub in Kawangware Riruta within Nairobi County murdered ESTHER NJERI GIATHI and ALI MWAMBURI ABDALLAH.

2. He pleaded not guilty to the said charge and to prove its case the prosecution called a total of ten (10) witnesses who testified against the accused person and at the close of the prosecution case the parties were invited to make submissions on whether the prosecution had made up a prima facie case to enable the court place the accused on his defence.

SUBMISSIONS

3. On behalf of the accused it was submitted that the accused and his colleagues were very drunk at the material day and that this state of intoxication placed the accused in a state that can be described as temporary insanity and without the necessary intention. It was further submitted that there was no direct evidence tendered against the accused and that the circumstantial evidence tendered was insufficient and not useful to the court since very crucial prosecution witnesses were never called.

4. On behalf of the prosecution it was submitted that they had made out a prima facie case against the accused person to warrant him to be placed on his defence and that malice aforethought was proved as the accused had not been placed within the provisions of Section 207 of the Penal Code and that the accused under the doctrine of transferred intent is held liable for the fatal deaths or gunshot wounds occasioned on the deceased persons even though he did not directly target them.

5. At this stage, the issue is not whether or not the prosecution has established a case against the accused person beyond reasonable doubt but whether a case has been made to justify calling upon the accused person to offer an explanation as was stated in the case of REPUBLIC v JAGJIVAN M. PATEL & Others (1) TLR as follows:-

“All the court has to decide at the close of the evidence in support of the charge is whether a case is made out against the accused just sufficiently to require him to make a defence, it may be a strong case or 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 to answer would be justified in my opinion in a border line case where the court, though not satisfied as to the conclusiveness of the prosecution evidence, is yet of the opinion that the case made out is one which on full consideration might possibly be thought sufficient to sustain a conviction.”

6. In this matter, I have looked at the evidence on record and in particular the evidence of PW1 ERICK BABAYARO ONSARE, PW4 BARASA BAKARI and PW5 and without saying much thereon at this stage so as not to prejudice the accused defence if any, I am satisfied and hold that a prima facie case has been established by the prosecution to enable me put the accused person on his defence which I hereby do. The accused is therefore advised on his rights under Section 306 of the Criminal Procedure Code.

DATED, DELIVERED and SIGNED at Nairobi this 2nd day of October, 2017.

…………………………………

J. WAKIAGA

JUDGE

In the presence of:-

Mr. Meroka for the State

Miss Maina for the Accused

Accused person present

Court clerk Tabitha