[2020] KEHC 883 (KLR)
The court found that the prosecution had adduced sufficient evidence through five witnesses to establish a prima facie case against the accused persons. The evidence included eyewitness testimony that the accused took the deceased from his home under the pretense of police involvement, subsequent information of an...
Source-derived case information.
- Citation
- [2020] KEHC 883 (KLR)
- Parties
- Applicant: Republic; Defendant: Katana Chome Ngala; Defendant: Sera Chome Ngala; Defendant: Neno Karisa Katana alias Nthenge
- Court
- High Court
- Court Station
- High Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 2 of 2017
- Procedural Posture
- Criminal Case / Ruling on Case to Answer at Close of Prosecution Case
- Outcome
- Accused persons found to have a case to answer and called upon to state their defence.
- Judges
- DB Nyakundi
- Legal Topics
- Murder, Elements of Offence, Malice Aforethought, Criminal Procedure, Case to Answer
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Katana Chome Ngala
Defendant
Sera Chome Ngala
Defendant
Neno Karisa Katana alias Nthenge
Defendant
Procedural Posture
Criminal Case / Ruling on 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 warrant their being put on their defence.
- 2 Whether the evidence adduced proves the elements of murder as required by law.
Ratio Decidendi
The court found that the prosecution had adduced sufficient evidence through five witnesses to establish a prima facie case against the accused persons. The evidence included eyewitness testimony that the accused took the deceased from his home under the pretense of police involvement, subsequent information of an assault, and postmortem findings of fatal head injuries. The court applied the legal test under Section 306 of the Criminal Procedure Code and the elements of murder as articulated in Uganda v Bosco Okello, holding that the prosecution's evidence, if believed, could sustain a conviction. Consequently, the accused persons were found to have a case to answer and were called upon...
Court Disposition
Accused persons found to have a case to answer and called upon to state their defence.
Orders
- Each accused person is called upon to state their defence in rebuttal to the charge under Section 306(2) of the Criminal Procedure Code.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MALINDI
CRIMINAL CASE NO. 2 OF 2017
REPUBLIC..........................................................................................PROSECUTOR
VERSUS
KATANA CHOME NGALA .............................................................. 1ST ACCUSED
SERA CHOME NGALA .................................................................... 2ND ACCUSED
NENO KARISA KATANAaliasNTHENGE................................... 3RD ACCUSED
Coram: Hon. Justice R. Nyakundi
Mr. Alenga for the state
Ms. Ruttoh advocate for the accused persons
RULING
The accused persons were all charged with the offence of murder contrary to Section 203 and 204 of the Penal Code. it is alleged in the information sheet between the night of 28th/29th December 2016 in Majenjeni village of Mambrui they jointly with others not before Court murdered Karisa Chome Ngala. Each accused denied the offence as such a plea of not guilty was entered to warrant a full trial.
Summary of the evidence
The background to the incident comes from testimony of (PW1) Agnes Kahaso and (PW2) Karisa Bahati that on the fateful night accused persons went to their home and walked the deceased away. In the first observation (PW1) and (PW2) testified that accused persons initiated to them that the deceased was required by the police at Marereni. It is also alleged by (PW1) and (PW2) that the following day each one of them received information of an assault against the deceased. The resultant postmortem examination produced as exhibit 1 showed that the deceased suffered severe head injury inflicted by sharp cutting object.
When the investigations commenced (PW3) – Kenga and (PW4) – Mwambegu also recorded statements attending to the death and the severe injuries seen on the deceased. Similarly, (PW5) Cpl Narman visited the scene and from the evidence of (PW1) and (PW2) there was reasonable belief that accused persons committed the murder.
The decision
Considering all aspects of this case at the close of the prosecution case, I am required to make a finding under Section 306 of the Criminal Procedure Code. The question to be answered is whether from the evidence an offence has been proved capable of sustaining a conviction. It has been held in the case of Uganda v Bosco Okello {1992 – 93} HCB 68 that for the offence of murder the prosecution is under a duty to prove the following elements:
(a). The death of the deceased.
(b). That the death was unlawfully caused.
(c). That in causing death the accused persons did so with malice aforethought.
(d). That its proven accused persons participated in the killing of the deceased.
I have reviewed the evidence of the five witnesses summoned by the state and the velacity of each of the statement on oath. It is therefore right to say and find that from the evidence accused persons have a case to answer.
I therefore hold that Section 306 (2) of the Criminal Procedure Code comes into play by calling accused persons to state their defence in rebuttal to the charge or as the case may be in this indictment.
DATED, SIGNED AND DELIVERED AT MALINDI THIS 7TH DAY OF DECEMBER 2020
...........................
R. NYAKUNDI
JUDGE
In the presence of:
1. Mr. Alenga for the state
2. Ms. Ruttoh for the accused persons