[2019] KEHC 3687 (KLR)
The court found that the prosecution's evidence, though circumstantial, was sufficient to establish a prima facie case against the accused. The accused was last seen with the deceased, was found hiding in suspicious circumstances, and the post mortem confirmed death by smothering. The totality of the evidence links...
Source-derived case information.
- Citation
- [2019] KEHC 3687 (KLR)
- Parties
- Applicant: Republic; Defendant: MSW
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 38 of 2017
- Procedural Posture
- Criminal Case / Ruling on Case to Answer After Close of Prosecution Case
- Outcome
- Accused found to have a case to answer and placed on his defence.
- Judges
- FM Mutuku
- Legal Topics
- Murder, Circumstantial Evidence, Prima Facie Case, Criminal Procedure, Burden of Proof
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
MSW
Defendant
Procedural Posture
Criminal Case / Ruling on Case to Answer After Close of Prosecution Case
Legal Issues
- 1 Whether the prosecution has established a prima facie case against the accused to require him to be put on his defence.
- 2 Whether the circumstantial evidence presented is sufficient to warrant the accused being called upon to answer the charge of murder.
Ratio Decidendi
The court found that the prosecution's evidence, though circumstantial, was sufficient to establish a prima facie case against the accused. The accused was last seen with the deceased, was found hiding in suspicious circumstances, and the post mortem confirmed death by smothering. The totality of the evidence links the accused to the offence and warrants that he be put on his defence. The court therefore ruled that the accused has a case to answer and must be informed of his rights regarding the manner of his defence and the calling of witnesses.
Court Disposition
Accused found to have a case to answer and placed on his defence.
Orders
- The accused is found to have a case to answer and is placed on his defence.
- The accused is informed of his right to address the court on the manner of giving evidence and whether he intends to call witnesses.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CRIMINAL CASE NO. 38 OF 2017
REPUBLIC.................................................PROSECUTOR
VERSUS
MSW.....................................................................ACCUSED
RULING
MSW is charged with murder contrary to section 203 as read with section 204 of the Penal Code. The particulars of this offence state that on the 22nd day of July 2017 at Shungoini Village in Riruta Satellite within Nairobi County he murdered MNW. The accused pleaded not guilty to this charge.
After calling a total of seven (7) witnesses the prosecution closed its case. The accused through his counsel Mr. Businge was directed to file written submissions on 16th July 2019 upon the request of Mr. Businge to do. However, no submissions have been filed to date. At the time of writing this ruling in August, I have confirmed that there are no submissions in the file.
The evidence against the accused is straight forward. He was married, or he lived with one LM as man and wife. They had a baby girl, MN now deceased. She was aged about 9 months. Their relationship was not a peaceful one. M is said to have left the matrimonial home after a domestic dispute. She left the baby with the accused on 19th July 2019. Evidence shows that EW (PW3) sister to the accused used to assist his brother in taking care of the baby. It was during one of the occasions when the accused was left taking care of the baby that the baby died. Information about the death of the baby reached E who called another brother of hers EW. Both went to the home of the accused. They found the body of the baby inside the accused’s house. Accused was at large. They reported the matter to the police who collected the body from the scene.
The accused was found at Ngong Forest hiding in circumstances that seemed suspicious. He was taken to Karen Police Station where he was received by SGT Dalmas Wambua (PW7). He was handed over to the police at Riruta Police Station. After investigations were completed, he was charged with this offence. The results from the post mortem conducted by Dr. Charles Muturi (PW6) on the body of the deceased revealed that the cause of death was due to smothering.
I have read the evidence and considered the same carefully. It is clear to me that the evidence against the accused is circumstantial. However, I am satisfied that the evidence against the accused establishes a prima facie case against him to warrant his being required to defend himself. In compliance with Section 306 (2) of the Criminal Procedure Code therefore, I hereby find that the accused has a case to answer and place him on his defence. I hereby inform him of his right to address the court in the manner in which he intends to give his evidence in defence and whether he has any witnesses to call. Orders shall issue accordingly.
Dated, delivered and signed this 19th day of September 2019.
S. N. Mutuku
Judge