[2023] KEHC 25157 (KLR)

Republic v Muthomi & 4 others (Criminal Case E009 of 2021) [2023] KEHC 25157 (KLR) (7 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25157 (KLR)

Republic of Kenya

In the High Court at Chuka

Criminal Case E009 of 2021

LW Gitari, J

November 7, 2023

Between

Republic

Prosecutor

and

Brian Mutwiri Muthomi

1st Accused

Royd Mutwiri Mbae

2nd Accused

Dennis Mutwiri M’Iti

3rd Accused

Antony Karani M’Iti

4th Accused

Kenneth Muriungi Kabee

5th Accused

Ruling

The accused person, Brian Mutwiri Muthomi

Royd Mutwiri Mbae

Dennis Mutwiri M’Iti

Anthony Karani M’Iti

Boniface Muthomi Kiraithe

Kenneth Muriungi Kabee are charged with the offence of Murder Contrary to Section 203 as read with Section 204 of the Penal code vide information dated 12/3/2021. The particulars of the charge are that on 22/2/2021 at Karumbi village in Maara Sub-County within Tharaka Nithi County, jointly with others not before court they unlawfully murdered Kelvin Mwenda Mbabu.

1. The accused person denied the charge. The prosecution called nine (9) witnesses and closed their case. This is a ruling as to whether the accused have a case to answer. I have considered all the evidence adduced. At the close of the prosecution case no submissions were tendered by the defence and the State. At this stage, this court is called upon to determine whether the accused have a case to answer. The court is supposed to determine whether based on the evidence, a case has been made out to warrant the accused to be put on their defence prima facie case is established where the evidence adduced by the prosecution is sufficient on its own for a court of law to convict in the absence of any explanation by the accused. The test for a prima facie case was laid down in the case of Ramanlal Trambaklal Bhatt v Republic (1957) E.A 332 at 335 where the court stated………………….. “It 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 property directing its mind to the law and the evidence could convict if no explanation is offered by the defence.”In Republic v Abdi Ibrahim Owi (2013) eKLR, the court defined a “prima facie” case as follows-‘prima facie is a latin word defined by a Black’s Law Dictionary 8thEdition as-“sufficient to establish a fact or raise presumption unless disapproved or rebutted”, ‘prima facie’ is defined by the same dictionary as,the establishment of a legally required rebuttable presumption.”Prima facie case means there is a rebuttable presumption of guilt of the accused on the offence charge. Section 306(1) of the Criminal procedure Code (Cap 75 Laws of Kenya) provides that-306(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. The court is therefore required to satisfy itself at this stage that a prima facie case has been out, sufficient to warrant the accused to be put on his defence. The trial court is however not required to give reasons for its finding as it may prejudice the accused who has not been given an opportunity to be heard. In other words, the court should not make a definitive finding at this stage, it is sufficient to inform the accused person that based on the evidence, a case has been established without giving reasons for that finding.

3. In this case, after carefully considering the evidence of the witnesses who were at the scene, I am satisfied that the prosecution has adduced sufficient evidence to warrant in this court to call upon the accused to give their defence. That is to say, that there is a prima facie case made out against the accused who in turn have a case to answer and shall be put on their defence as provided under Section 306(2) of the Criminal Procedure Code.

DATED, SIGNED AND DELIVERED AT CHUKA THIS 7TH DAY OF NOVEMBER 2023. L.W. GITARIJUDGE