[2017] KEHC 1203 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KAJIADO

CRIMINAL CASE NO. 9 OF 2016

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

Versus

1. JOHN KIMANZI MOINGO..................................1ST ACCUSED

2. JAMES OTIENO OCHIENG..............................2ND ACCUSED

RULING

JOHN KIMANZI MOINGOandJAMES OTIENO OCHIENGhereinafter referred as the accused persons are charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code. The particulars of the charge comprising of the offence are that on the night of 20th and 25th February 2013 in Rangau village, Kajiado County with others not before court accused jointly murdered Paul Njiri.

Each of the accused pleaded not guilty. The prosecution summoned a total of ten (10) witnesses in support of the offence.

At the close of the case for the prosecution this court had to take the liberty to make a finding under the provisions of section 306 (1) of the Criminal Procedure Code.

The legal position:

Section 306 (1) provides:

“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, recording 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 of the accused person of his right to address the court on his own behalf or to make an unsworn statement and to call witnesses in his defence….”

The sentiments echoed in this case to address the provisions of section 306 of the CPC can be formulated as dealing with the following issues:

Firstly, if at the close of the prosecution case there is no evidence to support the charge against the accused, the court ought to discharge or acquit him/her of the offence. It has been held by the court in the Bhatt Case (Supra) that in exercising discretion on a no case to answer the evidence should be such that no reasonable court, tribunal or jury, properly constituted could convict the accused of the offence charged. On the other hand if the prosecution has proved a prima facie case against the accused the court is entitled to put him on his/her defence.

The rationale behind this legal principle on a prima facie case in our criminal justice is to protect the rights of an accused to a fair hearing under Article 50 of the Constitution. It is important for courts to guard against the infringement of this right by the state in the course of prosecuting the accused for a criminal offence.

In other words the burden of proof of beyond reasonable doubt to establish their case against an accused never shifts and he need not answer an hopeless case. In my conceded view it is therefore wrong to compel an accused to answer a case that the state has not succeeded in any way to establish to a level of a prima facie case. The constitutional guarantees allows an accused person to remain silent and not testify during the proceedings (Article 50 (2) (1), and right to refuse to give self-incrementing evidence (see Article 50 (2) (1)).

The test at the close of the prosecution case under section 306 of the CPC would therefore be whether if the accused elects to remain silent is the court prepared to convict the accused. If the evidence at the conclusion of the prosecution case is such that it lacks in weight and reliability from which a reasonable tribunal/court would safely convict, a verdict of not guilty ought to be entered in his favour.

The above provisions strengthen the case in our jurisdiction not to place the accused on his defence unless at the close of the prosecution case there is evidence to support the allegations. The primary purpose to me is to safeguard the right of every accused to be presumed innocent until the contrary is proved (Article 50 (2) (a)).

On this account the supremacy of the constitution is real and no trial judge in assessing evidence under section 306 of the CPC should place an accused on his defence to the extent of violating his constitutional rights. William Blackstone in his commentary on the Laws of England succinctly stated as follows:

“it is better that unguilty person persons escape than that one innocent person shall suffer.”

In the present case I have considered the evidence before me as per the testimonies of PW1 – PW12. From the admissible evidence of PW1 – PW12 and considering and further applying the overall circumstances and applying both the constitutional provisions under Article 50, section 306 CPC and the decision in R.T. Bhatt Case (Supra), I conclude that there is admissible and relevant evidence touching on the elements of the charge contrary to section 203 of the Penal Code facing the two accused persons.

The significant of what I have set above is that prosecution has established a prima facie case to warrant the two accused person to be placed on their defence as outlined under section 306 (2) of the CPC.

Dated, delivered and signed in open court at Kajiado this 9th day of October, 2017

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R. NYAKUNDI

JUDGE

In the presence of:

Mr. Itaya for the 1st accused and also holding brief for Mr. Nyangaya for the 2nd accused

Mr. Akula for the state

Mr. Mateli Court Assistant