[2019] KEHC 3203 (KLR)
The court found that the prosecution's evidence, particularly the eyewitness testimony placing the accused at the scene holding the deceased by the throat and the post mortem report confirming death by asphyxia due to strangulation, was sufficient to establish a prima facie case against the accused. Accordingly, the...
Source-derived case information.
- Citation
- [2019] KEHC 3203 (KLR)
- Parties
- Respondent: Republic; Appellant: Muema Kivwia
- Court
- High Court
- Court Station
- High Court at Kitui
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 25 of 2017
- Procedural Posture
- Criminal Appeal / Ruling on Prima Facie Case at Close of Prosecution
- Outcome
- Accused put on his defence.
- Judges
- LN Mutende
- Legal Topics
- Murder, Criminal Procedure, Prima Facie Case, Burden of Proof
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Respondent
Muema Kivwia
Appellant
Procedural Posture
Criminal Appeal / 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 him being put on his defence.
- 2 Whether the evidence adduced links the accused to the offence of murder.
Ratio Decidendi
The court found that the prosecution's evidence, particularly the eyewitness testimony placing the accused at the scene holding the deceased by the throat and the post mortem report confirming death by asphyxia due to strangulation, was sufficient to establish a prima facie case against the accused. Accordingly, the accused was called upon to defend himself as required by Section 306(2) of the Criminal Procedure Code. The court emphasized that the evidence adduced pointed to the accused as the person who committed the act that may have resulted in the death of the deceased, thus satisfying the threshold for putting the accused on his defence.
Court Disposition
Accused put on his defence.
Orders
- The accused is called upon to defend himself pursuant to Section 306(2) of the Criminal Procedure Code.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KITUI
CRIMINAL APPEAL CASE NO. 25/2017
REPUBLIC..................PROSECUTOR
VERSUS
MUEMA KIVWIA.............ACCUSED
RULING
1. Muema Kivwia, the Accused is charged with the offence of Murder Contrary to Section203as read with section204of thePenal Code (Cap 63) Laws of Kenya.Particulars of the offence are that on13th December 2017atKoi villagein Twambui Sublocation Malalani locationwithinKitui Countymurdered Kivwia Mwinzi (Deceased).
2. Facts of the case are that on 13thday ofDecember 2017, PW1 Dorcas Mbuve Magatiwas at home when the Accused, her husband, returned home while drunk, he assaulted his child Mutie who was unwell. As a result, he run to his grandfather’s place. PW1 escaped the accused’s wrath and ran to seek assistance from their neighbours. PW2Nicholas Mutunga Mbuvi run to the scene to find the Accused sitting on his father, the deceased, who lay on the ground. He held his neck by the throat and threatened to finish him and turn to him (PW2). He went back home as a result.
3. The following morning, the deceased lay at the same place.The sub-chief was notified and he reported the matter to the Police. PW5 No. 241329 APC. Joel Kosgei visited the scene and found the Accused asleep inside the house. He arrested him. PW8 No. 67121 Sergeant Solomon Mwendwa visited the scene, and caused the body of the deceased to be moved from the scene to the Morgue. He also re-arrested the Accused.
4. At the close of the prosecution’s case, a post mortem conducted established the cause of death to be asphyxia, secondary to strangulation. Going by the evidence of PW2, the Accused was the person seen hold the deceased’s throat.
5. After full consideration of the evidence adduced, it points to the Accused as the person who committed the act that may have resulted into the death of the deceased.
6. Therefore I call upon him to defend himself pursuant to the provisions of Section 306(2) of the Criminal Procedure Code.
7. It is so ordered.
Dated, Signedand Deliveredat Kituithis 11th day of September, 2019
L.N. MUTENDE
JUDGE