[2023] KEHC 23683 (KLR)

Republic v Kasyoki alias Kidero (Criminal Case 21 of 2018) [2023] KEHC 23683 (KLR) (18 October 2023) (Ruling)

Neutral citation: [2023] KEHC 23683 (KLR)

Republic of Kenya

In the High Court at Machakos

Criminal Case 21 of 2018

FROO Olel, J

October 18, 2023

Between

Republic

Prosecution

and

Evans Masaku Kasyoki Alias Kidero

Accused

Ruling

1. The accused, Evans Masaku Kasyoki, was charged with the offence of murder contrary to section 203 as read section 204 of the Penal Code. It is alleged that on the night of 14th and 15th March 2014 at Kikambuani village, Kikambuani sub location within Machakos County murdered Erick Makau Musyoka.

2. I have considered the evidence from the twenty (20) prosecution’s witnesses who have so far testified. The issue before me at this stage is whether the evidence so far adduced warrants calling upon the accused to defend himself. In other words, has the prosecution established a prima facie case as against the accused to warrant placing him on his defence In Republic vs. Abdi Ibrahim Owl [2013] eKLR a prima facie case was defined as follows: -“Prima facie” is a Latin word defined by Black’s Law Dictionary, 8th Edition as “Sufficient to establish a fact or raise a presumption unless disproved or rebutted”. “prima facie case” is defined by the same dictionary as “The establishment of a legally required rebuttable presumption”. To digest this further, in simple terms, it means the establishment of a rebuttal presumption that an accused person is guilty of the offence he/she is charged with.

3. In Ramanlal Trambaklal Bhatt v. R [1957] E.A 332 at 334 and 335, the court stated as follows:“Remembering that the legal onus is always on the prosecution to prove its case beyond reasonable doubt, we cannot agree that a prima facie case is made out if, at the close of the prosecution, the case is merely one “which on full consideration might possibly be thought sufficient to sustain a conviction.” This is perilously near suggesting that the court would not be prepared to convict if no defence is made, but rather hopes the defence will fill the gaps in the prosecution case. Nor can we agree that the question whether there is a case to answer depends only on whether there is “some evidence, irrespective of its credibility or weight, sufficient to put the accused on his defence”. A mere scintilla of evidence can never be enough: nor can any amount of worthless discredited evidence…It is may not be easy to define what is meant by a “prima facie case”, but at least it must mean one on which a reasonable tribunal, properly directing its mind to the law and the evidence could convict if no explanation is offered by the defence.”

4. The question that this court has to deal with and answer at this stage is therefore, whether based on the evidence before this Court, the Court after properly directing its mind to the law and the evidence may, as opposed to will, convict if the accused chose to give no evidence.

5. The prosecution placed twenty (20) witnesses on the dock and the gist of the prosecution case was that, it is the appellant who had the motive to kill the deceased. The circumstantial evidence as laid before court by the family members, insurance fraud investigators, handwriting forensic examiners, data analysts from Safaricom, the doctor and public officers from civil registry pointed to that possibility.

6. As has been said time and again a prima facie case does not necessarily mean a case which must succeed. In other words, despite finding that a prima facie case has been made out, the Court is not necessarily bound to convict the accused if the accused decides to maintain his silence. At the conclusion the Court will still evaluate the evidence as well as the submissions and make a finding whether, based on the facts and the law, the prosecution has proved its case beyond reasonable doubt.

7. In May vs. O’Sullivan [1955] 92 CLR 654 it was therefore held that:“When at the close of the case for the prosecution a submission is made that there is no case to answer, the question to be decided is not whether on the evidence as it stands the defendant ought to be convicted, but whether on the evidence as it stands, he could lawfully be convicted. This is a really question of law.”

8. The test in such matters was therefore laid down in Republic vs. Galbraith[1981] WLR 1039 in the following words:“(1)If there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty. The judge will of course stop the case.(2)The difficulty arises where there is some evidence, but it is of a tenuous character, for example because of interment weakness or vagueness or because it is inconsistent with other evidence: (a) where the judge comes to the conclusion that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict upon it, it is his duty, upon a submission being made, to stop the case.(3)where however the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witnesses’ reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence upon which a jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury.”

9. Accordingly, having considered the material placed before me, I am satisfied that the prosecution has established a prima facie case for the purposes of a finding that the accused has a case to answer.

10. I accordingly place the accused on his defence.

11. It is so ordered.

RULING WRITTEN, DATED AND SIGNED AT MACHAKOS THIS 18TH DAY OF OCTOBER, 2023. FRANCIS RAYOLA OLELJUDGE