[2018] KEHC 9031 (KLR)
The court found that, upon reviewing the evidence on record and without delving into details that might compromise the defence, a prima facie case had been established against the accused persons. The contradictions raised by the defence were not sufficient at this stage to displace the prosecution's case to the...
Source-derived case information.
- Citation
- [2018] KEHC 9031 (KLR)
- Parties
- Applicant: Republic; Defendant: Lilian Ayuma Atiato; Defendant: Pamela Atieno Odende
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 51 of 2015
- 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 put on their defence.
- Judges
- J Wakiaga
- Legal Topics
- Murder, Prima Facie Case, Burden of Proof, Criminal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Lilian Ayuma Atiato
Defendant
Pamela Atieno Odende
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 putting them on their defence.
- 2 Whether contradictions in the prosecution evidence are material enough to undermine the case at this stage.
Ratio Decidendi
The court found that, upon reviewing the evidence on record and without delving into details that might compromise the defence, a prima facie case had been established against the accused persons. The contradictions raised by the defence were not sufficient at this stage to displace the prosecution's case to the extent that no case to answer could be found. Therefore, the accused persons were put on their defence in accordance with Section 306 of the Criminal Procedure Code.
Court Disposition
Accused persons found to have a case to answer and put on their defence.
Orders
- The accused persons are put on their defence under Section 306 of the Criminal Procedure Code.
- The accused persons are advised of their rights under Section 306 of the Criminal Procedure Code.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
CRIMINAL DIVISION
CRIMINAL CASE NO.51 OF 2015
REPUBLIC…...............................................................................................PROSECUTOR
VERSUS
LILIAN AYUMA ATIATO……...................................................................1ST ACCUSED
PAMELA ATIENO ODENDE ………………......……………………..…2ND ACCUSED
RULING
1. The accused persons were charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code the particulars of which were that on 8th day of May, 2015 at Mbotela Estate in Makadara District within Nairobi County murdered DAVID KICHUKU KARERI.
2. They pleaded not guilty and to prove its case against them the prosecution called a total of eight (8) witnesses and at the close of the prosecution case it was submitted by the defence that the prosecution case was full of contradictions and in particular the evidence of PW1 as against that of PW2 and PW3. It was submitted that the said contradictions went to the very root of the cause and in support thereof the case of REPUBLIC v MOUREEN ATIENO ODUOR High Court of Kenya at Kisumu Cr. Case No. 38 of 2014 was submitted.
3. The prosecution opted not to make any submissions but to rely upon the evidence on record.
4. At this stage all that the court is required to do is make a finding whether there is evidence tendered upon which a reasonable tribunal directing its mind can convict the accused person should they opt to offer no explanation as was stated in the case of RAMANLAL TRAMBAKLAL BHATT v REPUBLIC (1957) EA 332 at pg 335 as follows:-
“Remembering that the legal onus is always on the prosecution to prove its case beyond reasonable doubt, we cannot argue that a prima facie 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 could 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 argue 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 may not be easy to define what is meant by 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.” (Emphasis added)
5. I have taken into account the evidence on record and without saying much therein so as not to compromise the defence likely to be advanced by the accused persons and has come to a conclusion that a prima facie case has been established to enable me put the accused persons on their defence which I hereby do. The accused persons are hereby advised on their rights under Section 306 of Criminal Procedure Code.
DATED, DELIVERED and SIGNED at Nairobi this 27th day of February, 2018
………………………..
J. WAKIAGA
JUDGE
In the presence of:-
Mr. Meroka for the State
Mr. Ndungu for the 1st and 2nd accused
1st and 2nd Accused persons present
Court clerk Tabitha