[2018] KEHC 5226 (KLR)
The court found that the prosecution had adduced sufficient circumstantial and eyewitness evidence to establish a prima facie case against the accused, despite the absence of a postmortem report. The testimonies of the deceased's wife and cousin, who witnessed the accused attack the deceased, were considered...
Source-derived case information.
- Citation
- [2018] KEHC 5226 (KLR)
- Parties
- Appellant: Republic; Respondent: Musembi Wambua Nduku
- Court
- High Court
- Court Station
- High Court at Makueni
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 195 of 2017
- Procedural Posture
- Criminal Trial / Ruling on Case to Answer
- Outcome
- accused put on defence
- Judges
- CM Kariuki
- Legal Topics
- Murder, Standard of Proof, Circumstantial Evidence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Appellant
Musembi Wambua Nduku
Respondent
Procedural Posture
Criminal Trial / Ruling on Case to Answer
Legal Issues
- 1 Whether the prosecution has established a prima facie case to require the accused to be put on his defence.
- 2 Whether the absence of medical evidence precludes a finding of a case to answer in a murder charge.
Ratio Decidendi
The court found that the prosecution had adduced sufficient circumstantial and eyewitness evidence to establish a prima facie case against the accused, despite the absence of a postmortem report. The testimonies of the deceased's wife and cousin, who witnessed the accused attack the deceased, were considered credible and consistent. The court relied on the principle that while medical evidence is desirable, its absence does not automatically preclude a finding of a case to answer where the cause of death can be established by other evidence. Consequently, the accused was found to have a case to answer and was put on his defence.
Court Disposition
accused put on defence
Orders
- The accused is found to have a case to answer and is put on his defence.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MAKUENI
HCCR NO. 195 OF 2017
REPUBLIC......................................................................................APPELLANT
-VERSUS-
MUSEMBI WAMBUA NDUKU................................................RESPONDENT
RULING
INTRODUCTION
1. The accused was charged with offence of Murder contrary to Section 203 as read with Section 204 Penal Code.
2. Particulars being that on 11/03/2016 at Kilungu village, Kikumbulyu, Location Kibwezi District Makueni County murdered Joseph Mutuku Wambua.
3. The accused pleaded not guilty and the matter went into trial. At the close of the prosecution case the prosecution had called PW2 witnesses namely, the mother of deceased Mwikali Wambua and PW3 Linet Kasyoka cousin to the accused who witnessed the accused attack the deceased with a stick.
4. PW1, Pascalina Ndinda Mutuku deceased’s wife went to the scene and found husband injured and rushed him to hospital but he died on the way due to the bleeding.
5. The accused was seen attacking the deceased by PW2 and PW3.
6. The court notes that the postmortem report was not produced however the absence of medical report does not mean that the offence of murder cannot be proved by other circumstantial evidence.
7. In Ndungu-Vs- Republic [1985]KLR 497,the appellant was convicted by the High Court without the benefit of any medical evidence. On appeal, the Court of Appeal held that;
“Although there are cases in which death can be established without medical evidence relating to its cause, as where there are obvious and grave injures medical evidence should still be adduced in such cases of the effect of such injuries as opinion expert evidence and as evidence supporting the cause of death alleged by the prosecution.”
8. In our case the deceased apparently died on the way to hospital due the injuries inflicted by the accused.
9. Thus the court finds that the accused has therefore a case to answer and is put on his defence.
SIGNED, DATED AND DELIVERED THIS 24TH DAY OF JULY 2018, IN OPEN COURT.
..........................
C. KARIUKI
JUDGE