[2020] KEHC 740 (KLR)
The court found that the prosecution, through the testimony of five witnesses, including eyewitnesses, a medical expert, police officers, and a confession statement, had established a prima facie case against the accused. The evidence demonstrated the death of the deceased, the unlawful nature of the death, the...
Source-derived case information.
- Citation
- [2020] KEHC 740 (KLR)
- Parties
- Applicant: Republic; Respondent: Kenga Kajembe
- Court
- High Court
- Court Station
- High Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 3 of 2019
- Procedural Posture
- Criminal Case / Ruling on Prima Facie Case at Close of Prosecution
- Outcome
- Accused to be placed on his defence.
- Judges
- DB Nyakundi
- Legal Topics
- Murder, Burden of Proof, Prima Facie Case, Malice Aforethought
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Kenga Kajembe
Respondent
Procedural Posture
Criminal Case / Ruling on Prima Facie Case at Close of Prosecution
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 proves the death of the deceased, unlawfulness of the death, malice aforethought, and identification of the accused.
Ratio Decidendi
The court found that the prosecution, through the testimony of five witnesses, including eyewitnesses, a medical expert, police officers, and a confession statement, had established a prima facie case against the accused. The evidence demonstrated the death of the deceased, the unlawful nature of the death, the presence of malice aforethought, and placed the accused at the scene of the crime. The court held that the threshold for a prima facie case had been met, requiring the accused to be put on his defence in accordance with Section 306(2) of the Criminal Procedure Code. The court also considered the accused's right to a fair hearing under Article 50 of the Constitution and found no...
Court Disposition
Accused to be placed on his defence.
Orders
- The accused is placed on his defence in accordance with Section 306(2) of the Criminal Procedure Code.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MALINDI
CRIMINAL CASE NO. 3 OF 2019
REPUBLIC...............................................................................................PROSECUTION
VERSUS
KENGA KAJEMBE.........................................................................................ACCUSED
CORAM: Hon. Justice R. Nyakundi
Mr. Alenga for the state
Mr. Obaga for the accused person
RULING
The accused has been facing trial for the offence of murder contrary to Section 203 of the Penal Code. The charge is founded on the evidence to the effect that on the 14. 2.2019 at Burangi Village, Magarini Sub-County he murdered Kea Katana.
In support of the charge, the prosecution summoned the evidence of their five witnesses to proof it beyond reasonable doubt against the accused person. At the close of the prosecution case the defence asked the Court to make a finding in terms of Section 306 of the Criminal Procedure Code. The net effect of the admitted evidence shows on 14. 2.2019 (PW1) Rehema was at Mangwe club selling palm wine. Part of the customers she served wine happened to be the accused and the deceased.
Further, the evidence by (PW1) indicates that in the course of the evening each of them ordered for ‘wine’ and sat at different locations. In the course of that social evening accused person left his chair and went to the deceased holding his head, took a knife in his possession and slit the neck. Thereafter the accused took flight leaving the deceased on the ground bleeding from the injuries.
The next witness (PW2) Farah Karisa told the Court that on 14. 2.2019 he had taken palm wine to (PW1) to sell on his behalf. It was after a short while leaving the club he heard screams. On arrival at the scene, (PW2) stated that he saw the deceased lying on the ground with injuries and in pain pointed at the accused as the cause. According to (PW2), accused person was also within the vicinity armed with a knife issuing threats that if anyone of them is a man enough they should henceforth try to intervene. At the same time (PW2) told the Court that arrangements were made to take the deceased to the mortuary having succumbed to death from the harm inflicted.
(PW3) – Dr. Badia who conducted a post-mortem examination on the deceased testified that she came to the conclusion that the death occurred due to haemorrhalis shock due to cut wound on the neck.
(PW4) – Cpl Abdalla currently attached to Kizingo but formerly of Malindi Police Station told the Court that while at the station he saw the accused armed with a knife having surrendered and admitting to the crime. He therefore disarmed him of the knife placing him in police custody.
(PW5) Cpl. Abdalla Mawazo also a police officer from Marereni testified as the investigating officer to the murder. He told the Court that after various inquiries and witness statements recorded of (PW1), (PW2) and (PW3) he was able to establish that at the time of the incident accused and the deceased were in a palm wine club at Burangi Village. There is also the admitted evidence of the Senior Resident Magistrate Wasike who recorded the accused’s confession statement after satisfying herself of the voluntaries thereof. The aforesaid statement was as exhibit 4.
At the close of the prosecution case it was obligatory for the Court to make a finding pursuant to the provisions of Section 306 of the Criminal Procedure Code.
The question which arises is whether from the evidence of the five witnesses the prosecution has discharged the burden of proof of a primafacie case. At this stage all that the Court is called upon to undertake is to decide whether there is evidence which proves the following elements:
(a). The death of the deceased.
(b). Whether his death was unlawful.
(c). Whether the perpetrators in causing death had a malice aforethought.
(d). Finally, whether the prosecution has given reasonable evidence of identification of the accused and placing at the scene of the murder.
As a threshold matter, the evidence of the five witnesses has been reviewed by this Court both on the standard of proof vested with the prosecution and rights of the accused to a fair Hearing under Article 50 of the Constitution. On the factual basis and the evidence on record as a whole its clear a primafacie case has been established by the prosecution to warrant accused person to be placed on his defence in terms of Section 306 (2) of the Criminal Procedure Code.
It is so ordered.
DATED, SIGNED AND DELIVERED AT MALINDI THIS 7TH DAY OF DECEMBER, 2020
............................
R. NYAKUNDI
JUDGE