[2022] KEHC 11920 (KLR)

Republic v Kupai & 2 others (Criminal Case 13 of 2018) [2022] KEHC 11920 (KLR) (17 May 2022) (Ruling)

Neutral citation: [2022] KEHC 11920 (KLR)

Republic of Kenya

In the High Court at Kajiado

Criminal Case 13 of 2018

SN Mutuku, J

May 17, 2022

Between

Republic

Prosecutor

and

Japheth Mutembei Kupai

1st Accused

Kennedy Musembi Mathingithi

2nd Accused

Kaawet ole Ntaiya

3rd Accused

Ruling

1. The three accused persons named here are jointly charged with the murder of Sarah Samante Maleton contrary to section 203 as read with section 204 of the Penal Code. They are accused of committing this offence on the 26th day of August, 2018 together with others not before court, at Kumpa area of Kajiado Central Sub-county within Kajiado County.

2. After calling a total of fifteen (15) witnesses, the state closed its case. It is the duty of this court to evaluate and consider the evidence that has been produced against the accused persons and make a determination as to whether the prosecution has discharged its mandate of making out a case against the accused persons to require them to be called upon to testify in defence.

3. We are at the stage of the trial where the court is required to address itself to the requirements of the provisions of section 306 (1) and (2) of the Criminal Procedure Code. It provides as hereunder:(1)When the evidence of the witnesses for the prosecution has been concluded, the court, if it considers that there is no evidence that the accused or any one of several accused committed the offence shall, after hearing, if necessary, any arguments which the advocate for the prosecution or the defence may desire to submit, record a finding of not guilty.(2)When the evidence of the witnesses for the prosecution has been concluded, the court, if it considers that there is evidence that the accused person or any one or more of several accused persons committed the offence, shall inform each such accused person of his right to address the court, either personally or by his advocate (if any), to give evidence on his own behalf, or to make an unsworn statement, and to call witnesses in his defence, and in all cases shall require him or his advocate (if any) to state whether it is intended to call any witnesses as to fact other than the accused person himself; and upon being informed thereof, the judge shall record the fact.

4. In complying with the requirements of section 306 (1) and (2) of the Criminal Procedure Code the court is determining whether a prima facie case has been made out or not against the accused under trial and make a determination as the case may be. In Republic vs Abdi Ibrahim Owl[2013] eKLR, the court defined, in the following terms, what a prima facie case is:“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. In Ramanlal Trambaklal Bhatt v R [1957] EA 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 true, as Wilson, J said, that the court is not required at that stage to decide finally whether the evidence is worthy of credit, or whether if believed it is weighty enough to prove the case conclusively: that determination can only properly be made when the case for the defence has been heard. 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.”

5. In Ronald Nyaga Kiura v Republic [2018] eKLR, the court held similar view as in the cited case above. In this case the court stated as follows:“It is important to note that at the close of prosecution, what is required in law at this stage is for the trial court to satisfy itself that a prima facie, has been made out against the accused person sufficient enough to put him on his defence pursuant to the provisions of section 211 of the Criminal Procedure Code. A prima facie case is established where the evidence tendered by the prosecution is sufficient on its own for a court to return a guilty verdict if no other explanation in rebuttal is offered by an accused person. This is well illustrated in the cited Court of Appeal case of Ramanlal Bhat v Republic[1957] EA 332. At that stage of the proceedings the trial court does not concern itself to the standard of proof required to convict which is normally beyond reasonable doubt. The weight of the evidence however must be such that it is sufficient for the trial court to place the accused to his defence.”

6. I understand this to mean that a prima facie case is made out when there is sufficient and credible evidence for the court to rely on, even without the accused giving evidence in defence, to make a finding of guilty. Courts ought to be cautious in giving reasons why they make a finding that the accused has a case to answer. Suffice it to state that the accused has a case to answer and leave it at that. Trevelyan and Chesoni, JJ in Festo Wandera Mukando v The Republic [1980] KLR 103 stated as follows in this regard:“…we once more draw attention to the inadvisability of giving reasons for holding that an accused has a case to answer. It can prove embarrassing to the court and, in an extreme case, may require an appellate court to set aside an otherwise sound judgement. Where a submission of “no case” is rejected, the court should say no more than that it is. It is otherwise where the submission is upheld when reasons should be given; for then that is the end to the case or the count or counts concerned.”

7. The deceased in the case under consideration was murdered probably on the nigh of August 26, 2018. She had gone to visit her grandparents at Kumpa. She was expected to return home on August 27, 2018 to prepare to return to school. Her body was found in a thicket about 400 meters from her grandmother’s house by a herds boy called Saitabau (not a witness). Investigations leading to her death led police to arrest the three accused persons. The 1st accused is said to have been seen with the deceased by Noah Ole Neapana (PW9) on August 26, 2028 at 3pm. Noah told the court that the deceased and 1st accused parted ways but the 1st accused followed the deceased. Further that on August 27, 2018 the 1st accused told Noah that deceased had gone back to school making Noah caution the 1st accused not to play with the deceased because she was a school girl.

8. The 2nd accused is mentioned in evidence by Jeremiah Sakaiyan Parmuat (PW3) as having visited the home of deceased’s grandmother asking for deceased’s brother and further that Jeremiah took 2nd accused’s phone and dialled the last telephone number on that phone which number happened to be that of the deceased.

9. The 3rd accused is implicated in this matter because of the handset (Ex 1) that was identified as the phone the deceased was using at the time of her death which phone is said to have been stollen on the night she was killed.

10. I have considered the evidence. It is clear to me that the prosecution is relying on circumstantial evidence. I have considered the submissions by the three counsel representing the accused persons. The three counsel made joint submissions and told the court that the evidence is not sufficient to make a case to answer for any of the accused persons.

11. Having taken into account all the evidence, the relevant law and the authorities i have cited above, it is my considered view that the Prosecution has made out a prima facie case against each of the accused persons before the court. In compliance with section 306 (2) of the Criminal Procedure Code, I hereby place each of the accused persons on their defence. I hereby inform each of them of their right to inform this court how they wish to tender evidence in defence, whether they will give a sworn or unsworn evidence and whether they will call witnesses in their defence. Orders shall issue accordingly.

DATED, SIGNED AND DELIVERED THIS 17TH DAY OF MAY 2022. S. N. MUTUKUJUDGE