[2022] KEHC 11348 (KLR)

Republic v Kirema & 10 others (Criminal Case 18 of 2018) [2022] KEHC 11348 (KLR) (14 July 2022) (Ruling)

Neutral citation: [2022] KEHC 11348 (KLR)

Republic of Kenya

In the High Court at Chuka

Criminal Case 18 of 2018

LW Gitari, J

July 14, 2022

Between

Republic

Prosecution

and

Silas Mwangi Kirema

1st Accused

Misheck Mukinda Majura

2nd Accused

Joel Kinoti Muthengi

3rd Accused

Luke Muthuri Makembo

4th Accused

Benard Kimathi

5th Accused

John Mukundi Mucena

6th Accused

Stephen Gitonga Mucena

7th Accused

Peter Mutira Mucimi

8th Accused

Tarachiria Kangaria

9th Accused

Esther Karauki Munchunku

10th Accused

David Mutegi Karigi

11th Accused

Ruling

1. The accused persons herein jointly face the charge of murder contrary to section 203 as read with section 204 of thePenal Code(cap 63 of the laws of Kenya. It was alleged that on September 4, 2017 at around 10. 00hrs in Twanthanju sub location, Kathangachini location within Tharaka North sub county,the accused persons jointly with others not before court unlawfully murdered Delina Gacue.

2. Each of the accused persons denied the charge and the matter proceeded to trial.

3. The prosecution called a total of 6 (six) witnesses in support of its case against the accused persons. On February 23, 2022, the prosecution finally closed its case.

4. The question for this court to determine at this stage is whether the prosecution has made out a prima faciecase against the accused persons sufficient enough to warrant this court to put them on their defence pursuant to the provisions of section 306 of the Criminal Procedure Code. In other words, this court is to decide whether the prosecution’s case, may possibly succeed on its own, though not necessarily.

5. Several authorities have established what constitutes a prima facie case. The leading authority is the case of Ramanlal T Bhatt v Republic [1957] EA 332 where the court stated as follows:“(i)The onus is on the prosecution to prove its case beyond reasonable doubt and a prima facie case is not 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.(ii)The question whether there is a case to answer cannot depend 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.”

6. In this case, it is this court’s duty to evaluate the testimony of each of the six (6) prosecution witnesses against the charge of murder against the accused persons. Having considered the testimonies of the said witnesses together with the exhibits that were produced before this court, it is my view that the said evidence meets the threshold that was set out in the case of Bhatt v R (supra) in respect of determining whether an accused has a case to answer.

7. No reasons need to be given for this finding at this stage as this court is yet to hear the explanations of the accused persons. In addition, it is trite that giving reasons for this finding at this point would amount to determining the case without giving the accused persons an opportunity to be heard (See: Republic v Samuel Karanja Kiria [2009] eKLR).

8. It is therefore sufficient at this stage to inform the accused persons whether they have a case to answer and give them a chance to be heard. As such, I opine that all the accused persons have a case to answer and will be required under section 306 of the Criminal Procedure Code.

DATED, SIGNED AND DELIVERED AT CHUKA THIS 14TH DAY OF JULY 2022. L.W. GITARIJUDGE