[2023] KEHC 27331 (KLR)

Republic v Mumbi alias Tonga & another (Criminal Case 20 of 2018) [2023] KEHC 27331 (KLR) (12 October 2023) (Ruling)

Neutral citation: [2023] KEHC 27331 (KLR)

Republic of Kenya

In the High Court at Kajiado

Criminal Case 20 of 2018

SN Mutuku, J

October 12, 2023

Between

Republic

Prosecution

and

John Mutunga Mumbi alias Tonga

1st Accused

Evans Kipchirchir Langat alais Junior

2nd Accused

Ruling

1. John Mutunga Mumbi, alias Tonga, and Evans Kipchirchir, alias Junior, are jointly charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code. The particulars of the offence are that on 10th November, 2018, together with others not before court, at Mathare village in Ngong Township, Kajiado North Sub-County within Kajiado County murdered Nampaani Larpei alias Galgalo.

2. The accused took the plea on 11/3/2019. They denied committing the offence. The case proceeded to full hearing with the prosecution calling a total of 8 witnesses after whose evidence the prosecution closed its case paving the way for this ruling. The duty of the court at this stage of the trial is to determine if the prosecution has made out a prima facie case against the second accused person so as to persuade this court to place him on his defence.

3. What is prima facie case? In Republic v Abdi Ibrahim Owl [2013] eKLR the court stated as follows in defining prima facie case:“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.”

4. Further, prima facie case is defined 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 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. That is the threshold the prosecution must meet in order to persuade this court that the second accused person is required to answer to the charges facing him in defence. In order for this court to determine whether the prosecution has met the above threshold, I must examine the evidence tendered in support of the prosecution case in regard to the 2nd accused person.

6. I took over this case after six (6) witnesses had testified before my brother, Justice Mwita. I took the evidence of two witnesses, Police Constable Boit Kiplimo, PW7, and Dr Charles K. Muturi, PW8, the Pathologist. The latter examined the body of the deceased on 16th November, 2018. He found that the deceased had sustained severe head injury due to blunt force trauma. The deceased had also sustained multiple bruises on the face, scalp, upper limbs, chest, back, left pelvis and both knees. He had abrasions on the face, upper limbs and buttocks. The cause of death was head injury.

7. The facts of the case, as can be discerned from the evidence of record, are that an altercation occurred between the deceased and one Lateu on the night of 9th October, 2018 after Lateu accused the deceased of having stolen his radio. Lateu was joined by one Kasee in beating the deceased. At the scene was also Alex Njuguna (PW2), Kamonde, 1st accused and 2nd accused. PW2 advised the deceased to run away towards the dumpsite which he did followed by Kasee, Lateu, Kamonde, 1st and 2nd accused. They were all at the dumpsite near Ngong Town. Later, the deceased was brought back to the shade on a motorcycle accompanied by Kasee and Lateu. He was injured and could not walk. He was taken to hospital but died while undergoing treatment.

8. The evidence of Celestine Achieng, PW1, is that at around 4. 00am on the night of 9/10/2018 she heard noises. The people making noise entered her house. Celestine identified 3 people who entered her house as Lateu, Kasee and Kamonde. They were searching for a suspect they referred to as Christine’s husband whom they said was a thief. They did not find the suspect. Christine told the court that she did not know the 2nd accused.

9. The only witnesses who were present at the scene on the night of 9th and 10th October, 2018 are Alex Njuguna Ngugu, PW2, and Musa Benson Leturu, PW3. The rest of the witnesses learned after the fact that the deceased had been assaulted and injured and that he had succumbed to the injuries. Indeed, PC Boit Kiplimo, PW7, testified that he was testifying according to the information he received from witnesses in the course of his investigations. He told the court that the accused persons were mentioned by Alex Njuguna (PW2) and Benson (PW3).

10. I have keenly read the evidence of Alex Njuguna Ngugu, PW2. He did not mention the 2nd accused persons assaulting the deceased. According to him, it was Kasee and Lateu who started beating the deceased with wood asking him where their things were. Although he testified that the deceased ran away pursued by Kasee, Lateu, Kamonde, 1st and 2nd accused, he did not follow them and could not testify as to what happened after the deceased was pursued other than that he was brought back having been assaulted and injured.

11. In his evidence in chief, PW2 told the court that “Galgalo asked me whether I had ever seen him steal anything from a friend and I said No. He only said he had been beaten but did not tell me who had beaten him.” On cross-examination, PW2 stated that:“Accused 2 did not join in beating Galgalo. I advised Galgalo to run away. He was followed by Kamonde, accused 2, Lateu and Kasee. I do not know what happened thereafter. Accused had no altercation with Galgalo……. I talked to the deceased, he did not tell me that the 2nd accused had attacked him.”

12. Musa Benson Leturu, PW3, was also present in company of deceased, PW2, accused persons, Kamonde, Kasee and Lateu when Lateu confronted the deceased on allegations that he had stolen from him. He testified that Kamonde, Kasee and Lateu started beating the deceased who ran away. PW3 told the court that he, too, ran away for fear of being attacked. He testified that the deceased went to his house where the deceased followed him; that Kamonde, Kasee and Lateu entered his house in pursuit of the deceased and started beating him using metal bars; that the deceased ran off again and that in the morning he found the deceased lying on the ground injured. He was taken to Ngong Hospital where he died while being treated.

13. PW3 did not mention, in his evidence in chief, the 2nd accused person as having taken part in assaulting the deceased. In cross-examination, PW3 said that he did not see the 2nd accused at the scene.

14. Paul Supeet Kanyago, PW4, testified that he knew the deceased. That he was not at the dumpsite on the day of the incident but was informed that someone had been beaten at the shade. That on 11/11/2018 they tried to find out who were at the dumpsite on that night. The information they got from neighbours about the people who had assaulted the deceased and that they arrested the 1st accused and took him to Ngong police station. He told the court he did not know the 2nd accused and how he is connected to the deceased murder.

15. Paul Njuguna Kariuki, PW5, testified that on 10/11/2018 he was on his way to work when he saw people gathered near the dumpsite. They were contributing money to take the deceased to hospital but the deceased died later while undergoing treatment. That the following day a meeting was held PW3 mentioned Kamonde, Lateu, Kasee, Tonga and Junior. He said that he didn’t know the 2nd accused prior to the arrest.

Analysis and Determination 16. Murder is defined in section 203 of the Penal Code thus: ‘Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.’

17. While I appreciate that at this stage of the trial I am not writing a judgment, it is important to give reasons for arriving at the decision I am about to make. The threshold to meet is the one defined above in this ruling. For the offence of murder to be established, three elements of that offence, namely: malice aforethought (mental intent); the act of causing the death of another and the means of causing the death (unlawful act or omission), must be established. If the offence of murder, broken down into those three elements is not established at the time the prosecution closes its case, then the court is left with no option but to acquit the accused person. The law does not place any burden on the accuse to prove his innocence. This onus in a criminal trial always lies with the prosecution.

18. Section 306 (1) and (2) of the Criminal Procedure Code, provides that:(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.

19. Having carefully analyzed the evidence before me, it is my finding that the prosecution case has serious gaps. It is clear to me that it is only the evidence of PW2 and PW3, that the police relied on to arrest and charge the 2nd accused person. PW4 and PW5, who participated in searching for the culprits were not at the scene when the deceased was confronted. They went searching for the accused person based on the information received that they were present when the deceased was assaulted. PW1 did not mention the second accused person as having come to her house looking for the deceased. She mentioned Kamonde, Lateu and Kasee.

20. I have analyzed the evidence of PW2 and PW3 in this ruling above to the effect that none of the two witnessed mentioned the 2nd accused person as having participated in assaulting the deceased. The Investigating Officer relied on the evidence implicating the 2nd accused person given to him but that evidence has not been confirmed by the witnesses that were at the scene.

21. In my considered view, it would be a miscarriage of justice to except the defence to fill in the gaps left by the prosecution case. It is clear from the evidence before the court that there is none pointing to the 2nd accused persons as having participated in assaulting the deceased. The prosecution has not therefore established a prima facie case as defined above.

22. As provided for under Section (306 (1) of the Criminal Procedure Code, I find no evidence implicating the 2nd accused person. Consequently, I hereby record a finding of not guilty against the 2nd accused person. I find that he has no case to answer and is hereby acquitted of the offence of murder as charged. He is free to go home unless for any lawful cause they are held in custody.

23. It is so ordered.

DATED, SIGNED AND DELIVERED THIS 12TH DAY OF OCTOBER 2023. S. N. MUTUKUJUDGE