[2015] KEHC 261 (KLR)
The court found that the prosecution had established a prima facie case against the accused, John Kioko Musembi, based on the evidence of fourteen witnesses, including the fact that the accused was last seen with the deceased children and the subsequent recovery of their remains. The court held that the evidence on...
Source-derived case information.
- Citation
- [2015] KEHC 261 (KLR)
- Parties
- Applicant: Republic; Defendant: John Kioko Musembi
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 87 of 2009
- Procedural Posture
- Criminal Case / Ruling on Case to Answer After Close of Prosecution Case
- Outcome
- Accused found to have a case to answer and ordered to be put on his defence.
- Legal Topics
- Murder, Prima Facie Case, Criminal Procedure, Burden of Proof
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
John Kioko Musembi
Defendant
Procedural Posture
Criminal Case / Ruling on Case to Answer After Close of Prosecution Case
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 murder of Muya Kioko and Irene Kioko.
Ratio Decidendi
The court found that the prosecution had established a prima facie case against the accused, John Kioko Musembi, based on the evidence of fourteen witnesses, including the fact that the accused was last seen with the deceased children and the subsequent recovery of their remains. The court held that the evidence on record was sufficient to require the accused to be put on his defence, as required by section 306(2) of the Criminal Procedure Code. The court explained the accused's rights regarding the manner of his defence and whether he wished to call any witnesses. Accordingly, the accused was found to have a case to answer and was ordered to proceed with his defence.
Court Disposition
Accused found to have a case to answer and ordered to be put on his defence.
Orders
- The accused, John Kioko Musembi, is found to have a case to answer and shall be put on his defence.
- The accused's rights under section 306(2) of the Criminal Procedure Code have been explained to him.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CRIMINAL CASE NO. 87 OF 2009
REPUBLIC.......................................................PROSECUTOR
VERSUS
JOHN KIOKO MUSEMBI….....................................ACCUSED
RULING
John Kioko Musembi faces two murder charges contrary to section 203 as read with section 204 of the Penal Code. The particulars of the two charges are that between 13th and 18th day of September 2009 at an unknown time at Keekonyoike Location within Kajiado District of the Rift Valley Province he murdered Muya Kioko and Irene Kioko.
I took over the proceedings in this case after seven (7) witnesses had testified before Hon. Justice Ombija who had disqualified himself from the conduct of this case. The accused chose to proceed from where the proceedings had reached without recalling any witness. I took evidence of seven (7) witnesses. At the close of the prosecution case the prosecution counsel and the defence counsel opted not to submit and asked the court to give its ruling.
Briefly, the facts of this case show that M. K, a boy aged 3½ years and his sister I. N, aged one (1) year were picked by their father, the accused, from their grandmother’s home at Isinya, Kajiado, in the afternoon of on 13th September 2009 allegedly to go to the shops at Isinya to buy airtime. They took time to return. At around 7. 00pm the matter was reported to the police at Isinya Police Station.
The two children were not seen alive again. The clothes the children had been wearing, a skeleton of human leg and human skull were recovered at Mbirika area in Isinya on 18th September 2009. The accused was thereafter arrested and charged with this offence.
At this stage of the trial after the prosecution has closed its case, the court is required to make a determination as to whether the prosecution has made out a prima facie case to require the accused to be placed on his defence.
I have examined all the evidence from the seven witnesses who testified before Hon. Justice Ombija and the seven witnesses who testified before me and I arrive at a conclusion that the prosecution has established a prima facie case against the accused person. He shall be put to his defence for I find that he has a case to answer. His rights to inform the court the manner in which he intends to defend himself and whether he wishes to call any witnesses as stated under section 306 (2) Criminal Procedure Code have been explained to him. Orders shall issue accordingly.
Dated, signed and delivered this 7th December 2015.
S. N. MUTUKU
JUDGE
In the presence of:
Ms Macharia, for the prosecution
Mr. Wachira for the accused
Mr. John Kioko Musembi, the accused
Mr. Daniel Ngumbi, court clerk