[2019] KEHC 170 (KLR)
The court found that the prosecution, through the evidence of six witnesses, had established a prima facie case against the accused persons. The evidence, though mainly circumstantial, demonstrated a causal connection between the death of the deceased and the unlawful conduct of the perpetrators. The court held that...
Source-derived case information.
- Citation
- [2019] KEHC 170 (KLR)
- Parties
- Applicant: Republic; Defendant: Karisa Maitha Thoya alias Ndiso; Defendant: Said Karisa Maitha alias Moto; Defendant: Baya Karisa Maitha; Defendant: Clientone Kazungu Karisa Maitha
- Court
- High Court
- Court Station
- High Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 20 of 2016
- Procedural Posture
- Criminal Case / Ruling on No Case to Answer at Close of Prosecution Case
- Outcome
- Accused persons to be placed on their defence; prosecution has established a prima facie case.
- Judges
- DB Nyakundi
- Legal Topics
- Murder, Prima Facie Case, Burden of Proof, Common Intention, No Case to Answer
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Karisa Maitha Thoya alias Ndiso
Defendant
Said Karisa Maitha alias Moto
Defendant
Baya Karisa Maitha
Defendant
Clientone Kazungu Karisa Maitha
Defendant
Procedural Posture
Criminal Case / Ruling on No Case to Answer at Close of Prosecution Case
Legal Issues
- 1 Whether the prosecution has established a prima facie case against the accused persons to require them to be placed on their defence.
- 2 Whether the evidence adduced proves the essential elements of the offence of murder against the accused persons.
- 3 Whether the doctrine of common intention applies to the accused persons in the commission of the offence.
Ratio Decidendi
The court found that the prosecution, through the evidence of six witnesses, had established a prima facie case against the accused persons. The evidence, though mainly circumstantial, demonstrated a causal connection between the death of the deceased and the unlawful conduct of the perpetrators. The court held that the prosecution had discharged its burden of proof at this stage, particularly regarding the death of the deceased and the involvement of the accused persons under the doctrine of common intention. As such, the accused persons were required to be placed on their defence to rebut the prosecution's case. The court emphasized that the consideration of evidence at this stage...
Court Disposition
Accused persons to be placed on their defence; prosecution has established a prima facie case.
Orders
- Each accused person is called upon to proceed and offer his defence in rebuttal.
Full Case Text
Judgment text and source record
41 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MALINDI
CRIMINAL CASE NO. 20 OF 2016
REPUBLIC.......................................................................PROSECUTOR
VERSUS
KARISA MAITHA THOYA alias NDISO......................1ST ACCUSED
SAID KARISA MAITHA aliasMOTO...........................2ND ACCUSED
BAYA KARISA MAITHA................................................3RD ACCUSED
CLIENTONE KAZUNGU KARISA MAITHA............4TH ACCUSED
Coram: Hon. Justice R. Nyakundi
Ms Sombo for the State
Mr. Mouko for the Accused persons
RULING
The four accused persons were jointly charged with the offence of murder contrary to Section 203 of the Penal Code. The brief facts of the case are that on 24th November, 2016 at Duke village in Chamari Sub-location, the accused jointly with others not before court murdered Jeremiah Komoro Guyo.
The accused persons upon indictment pleaded not guilty to the charge. In that view the prosecution had a duty under section 107(1) of the Evidence Act to prove the charge beyond reasonable doubt.
Mr. Mouko represented the accused persons and the State was represented by Prosecution Counsel set by Ms. Babra Sombo. The scope of the prosecution case was based on the evidence of six witnesses.
At the close of the prosecution case under Section 306(1) of the Criminal Procedure Code the prosecution.
The prosecution or defence counsel may submit on a motion of no case to answer that the following ingredients of the offence against the accused persons or persons remain unproven:
a) That the deceased is dead;
b) That the death was caused unlawfully;
c) That there was no malice aforethought;
d) Finally, that the accused persons were never directly or indirectly involved in the murder of the deceased.
Therefore, on a motion of no case to answer if on the evaluation of the evidence of the six witnesses it appears to the court that no case has been made out against any of the accused persons sufficiently to require them to be placed on their defence the court has a duty to enter a verdict of not guilty and order for their acquittal.
On the other hand, if the analysis of the evidence reveals the existence of the elements for the offence of murder the accused persons shall be required to proceed to state their defence including calling of witnesses or take any other steps as provided for in Section 306(2) of the Criminal Procedure Code.
An important point is that any consideration of the evidence at this state should be kept at a minimum to avoid any conclusions made to finality.
In Sanjit Chaitlal v the State 1985 59 WLR 925 the court said:
“A submission that there is no case to answer may properly be made and upbheld:
a) when there has been no evidence adduced by the prosecution to prove an essential element in the alleged offence
b) when the evidence adduced by the prosecution has been so discredited that no reasonable tribunal could safely convict on it. See also R.T. Bhatt v R 1957 EA 332.
In the instant case I have taken into account on what each witness claimed to have known or seen in regard with the death of the deceased. These events and other occurrence satisfactorily establish a prima facie case against the accused persons.
On this evidence two substantive issues arise in the commission of the crime as framed in law. That the deceased death remains undisputed. Secondly, his death falls within the doctrine of common intention under section 21 of the Penal code. That two or more persons were involved actively in the commission of the offence.
On the evidence on record which is mainly circumstantial there is a causal connection between the death of the deceased and some unlawful conduct of the perpetrators.
It is in this context I make a finding that the prosecution has discharged the burden of proof of a prima facie case to warrant each one of them to be called upon to proceed and offer his defence in rebuttal.
It so ordered.
DATED, SIGNED AND DELIVERED AT MALINDI THIS 24TH DAY OF SEPTEMBER, 2019.
...............................
R. NYAKUNDI
JUDGE
In the presence of: -
Accused persons