[2010] KEHC 415 (KLR)
The court found that the prosecution had adduced sufficient evidence to establish a prima facie case against the accused. The accused was recognized by a witness, was armed with a rifle, and participated in a planned attack. Although no witness saw the accused kill the deceased, the evidence of common intention and...
Source-derived case information.
- Citation
- [2010] KEHC 415 (KLR)
- Parties
- Applicant: Republic; Defendant: John Kimiya Mwaniki
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 116 of 2007
- Procedural Posture
- Criminal Case / Ruling on Case to Answer
- Outcome
- Accused found to have a case to answer and put on his defence.
- Judges
- MJA Emukule
- Legal Topics
- Case to Answer, Prima Facie Evidence, Common Intention, Armed Attack
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
John Kimiya Mwaniki
Defendant
Procedural Posture
Criminal Case / Ruling on Case to Answer
Legal Issues
- 1 Whether the prosecution has established a prima facie case against the accused to warrant putting him on his defence.
- 2 Whether the evidence adduced links the accused to the attack and the deaths in question.
Ratio Decidendi
The court found that the prosecution had adduced sufficient evidence to establish a prima facie case against the accused. The accused was recognized by a witness, was armed with a rifle, and participated in a planned attack. Although no witness saw the accused kill the deceased, the evidence of common intention and participation in the attack was sufficient to require the accused to be put on his defence. The court reminded the accused of his statutory rights under Section 306(2) of the Criminal Procedure Code to address the court, give evidence, or call witnesses in his defence.
Court Disposition
Accused found to have a case to answer and put on his defence.
Orders
- The accused is found to have a case to answer and is put on his defence as per Section 306(2) of the Criminal Procedure Code.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAKURU
CRIMINAL CASE NO. 116 OF 2007
REPUBLIC………………………………………….PROSECUTOR
VERSUS
JOHN KIMIYA MWANIKI…………………………………..ACCUSED
RULING
I have now had the benefit of reviewing the prosecution evidence in this matter. I have also considered carefully the submissions by Mr. Karanja learned counsel for the accused herein along with those of Mr. Nyakundi, learned State Counsel.
Indeed as Sir Newham Worley P said in the old case of RAMANLAL T. BHAT vs. R[1957] E.A. 332,
"the court is not required at this stage to decide finally whether the evidence is worthy of credit, or whether if believed it is weighty enough to prove the case conclusively: that final determination can only properly be made when the case for the defence had been heard."
The expression,"prima facie"evidence, in its literal sense is used to mean on the threshold, proof of an issue, the burden of proving which is upon the party giving that evidence, and which in the absence of further evidence from the other side, the prima facie proof becomes conclusive proof and the party giving such evidence discharges his onus.
In this case, the prosecution's primary case is that the accused herein was known to PW2 or PW2 knew him before, and recognized him armed with a rifle, and even shot at PW2 twice and missed him. Ordinarily civilians do not walk around with guns unless they are licensed to carry them. I agree with the submission by Mr. Nyakundi, learned State Counsel the fact that the accused was armed with a gun is sufficient testimony that the attack on the deceased, and the survivors, was planned. There is evidence that the accused was among the persons who designed the attack and executed it.
There is evidence that the accused and the other raiders had a common intention to carry out the attack although nobody saw him kill the three deceased an adult and two children.
For those reasons, I find that the accused has a case to answer, and is reminded of his statutory rights under Section 306(2) of the Criminal ProcedureCode (Cap. 75, Laws of Kenya)to address the court(through his Advocate as he is represented by counsel),to give evidence on his own behalf, or to make an unsworn statement and to call witnesses in his defence, and of his intention to call such witnesses.
Dated, delivered and signed at Nakuru this 29th day of October 2010
M. J. ANYARA EMUKULE
JUDGE