[2019] KEHC 4814 (KLR)
The court found that the prosecution had adduced sufficient circumstantial evidence linking the accused persons to the murder of the deceased. This included the recovery of cell phones stolen during the attack from individuals who identified the accused as the sellers. Applying the legal standard for a prima facie...
Source-derived case information.
- Citation
- [2019] KEHC 4814 (KLR)
- Parties
- Applicant: Republic; Defendant: Mulyungi Kitui; Defendant: Benson Musyoka Mutisya
- Court
- High Court
- Court Station
- High Court at Kitui
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 29 of 2015
- Procedural Posture
- Criminal Case / Ruling on Whether a Prima Facie Case Has Been Established at the Close of the Prosecution's Case
- Outcome
- Accused persons found to have a case to answer and are put on their defence.
- Judges
- LN Mutende
- Legal Topics
- Murder, Prima Facie Case, Criminal Procedure, Circumstantial Evidence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Mulyungi Kitui
Defendant
Benson Musyoka Mutisya
Defendant
Procedural Posture
Criminal Case / Ruling on Whether a Prima Facie Case Has Been Established at the Close of the Prosecution's Case
Legal Issues
- 1 Whether the prosecution has established a prima facie case against the accused persons to warrant their being put on their defence.
- 2 Whether the circumstantial evidence linking the accused to the offence is sufficient at this stage.
Ratio Decidendi
The court found that the prosecution had adduced sufficient circumstantial evidence linking the accused persons to the murder of the deceased. This included the recovery of cell phones stolen during the attack from individuals who identified the accused as the sellers. Applying the legal standard for a prima facie case as articulated in Ramanlal Trambaklal Bhatt v. Republic and Republic v. John Gachamba Mwangi, the court held that a reasonable tribunal, properly directing its mind to the law and the evidence, could convict the accused if no explanation is offered. Consequently, the accused persons are required to render an explanation pursuant to Section 306(2) of the Criminal Procedure...
Court Disposition
Accused persons found to have a case to answer and are put on their defence.
Orders
- The accused persons are put on their defence pursuant to Section 306(2) of the Criminal Procedure Code.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KITUI
CRIMINAL CASE NO. 29 OF 2015
REPUBLIC...............................................................................PROSECUTOR
VERSUS
MULYUNGI KITUI..................................................................1ST ACCUSED
BENSON MUSYOKA MUTISYA...........................................2ND ACCUSED
R U L I N G
1. Mulyungi Kitui(1st Accused) and Benson Musyoka Mutisya(2nd Accused) are charged with the offence of Murdercontrary to Section 203as read with Section 204of the Penal Code (Cap. 63), Laws of Kenya.Particulars of the offence are that on the 7thday of April, 2007at about 9. 00 p.m.near Kitui Municipal Stadiumin Kitui Districtof the Eastern Provincejointly with others not before Court murdered Joyfred Mwithi Kiminza(Deceased).
2. Facts of the case are that on the 6thday of April, 2007,PW1 Judith Muthini Mwithiand the Deceased, her husband and their friends, PW2 Jeddy Mwende Museeand PW3 Jacob Nsimula Kangotuwere attacked by persons they did not identify upon returning home at about 10. 00 p.m.In the course of the incident the attackers took away from them some cell phones amongst other items. One of the intruders made the Deceased walk towards a nearby thicket. After they left she failed to trace him. The police visited the scene searched and found his body lying on the ground. It was moved to the mortuary. Thereafter a post-mortem was conducted. It was concluded that the cause of death was severe head injury.
3. In the course of investigations carried out, the police arrested individuals who were using some cell phones believed to have been robbed off PW1 and the Deceased. The individuals mentioned the Accused persons herein as the ones who sold the cell phones to them. Following the circumstantial evidence, the Accused persons were arrested and charged.
4. In the case of Ramanlal Trambaklal Bhatt vs. Republic (1957) EA 332it was stated thus:
“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 accused on his defence. A mere scintilla of evidence can never be enough, nor can any amount of worthless discredited evidence. 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 the case of Republic vs. John Gachamba Mwangi (2006) eKLRit was stated as follows:
“A prima facie, in my understanding, is a well-based case which, at a first glance, carries clear pointers that the Accused has a substantial involvement in the circumstances attending the commission of the offence; so that a close examination of those circumstances could well lead to a finding that the Accused did commit the offence – and hence it makes practical sense that the Accused be given a chance to explain his position in the matter.”
6. The investigators traced PW8 Nicholas Kasomo Malukiwho identified the 1st Accused as the person who sold to him the cell phone. A second cell phone was found in possession of Josephwho identified the 2nd Accused as the person who sold to him.
7. At the close of the Prosecution’s case there is sufficient evidence requiring the Accused persons to render an explanation pursuant to the provisions of Section 306(2)of the Criminal Procedure Code.
8. It is so ordered.
Dated, SignedandDeliveredatKituithis2ndday of July, 2019.
L. N. MUTENDE
JUDGE