[2022] KEHC 11728 (KLR)

Republic v Mwangi (Criminal Case 6 of 2020) [2022] KEHC 11728 (KLR) (5 May 2022) (Ruling)

Neutral citation: [2022] KEHC 11728 (KLR)

Republic of Kenya

In the High Court at Nakuru

Criminal Case 6 of 2020

TM Matheka, J

May 5, 2022

Between

Republic

Prosecutor

and

Duncan Mwamba Mwangi

Accused

Ruling

1. The accused is charged with murder contrary to section 203 as read with section 204 of the Penal Code(cap 63) Laws of Kenya. It is alleged that on the January 12, 2020 at Muchorwe Trading Centre in Molo Sub- County within Nakuru County jointly with another not before court he murdered Stephen Wandera.

2. He denied the charge.

3. Upon the closure of the case for the prosecution the court is to determine whether on the evidence on record, a prima facie case has been made to warrant his being put on the defence.

4. The applicable law is found in section 306 (1) and (2) of the Criminal Procedure Code [cap 75] Laws of Kenya, which provides:“(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.”

5. The foregoing statutory provisions have not defined what constitutes a prima facie case. According to Bhatt v R [1957] EA 332 at page 335 paragraphs (a) and (b) a prima facie case is made out when:“a reasonable tribunal properly directing its mind to the law and the evidence could convict if no explanation is offered by the defence.”

6. To determine the issue it is necessary to consider the evidence to some extent.

7. PW1, Susan Wanjiru, recalled that on January 12, 2020 at 9. 00pm she was at Club 7 with her friends i.e. Margaret Wambui and the deceased taking alcohol and at 10pm she left for home in company of the deceased. Outside the bar, they met the accused and one Chege who demanded the alcohol the deceased was carrying and when the deceased declined to give them, Chege took a piece of timber from a nearby kiosk (Kibanda) and hit the deceased twice on the head. The accused also picked up the same piece of timber and hit the deceased on the head. He fell down. She screamed loudly for help and her screams attracted the attention of Margaret Wambui PW2 and Joseph Chege who came out of the bar to check what was happening. That they found the deceased on the ground bleeding profusely and they decided to look for a car to take the deceased to the hospital for treatment. They got a Probox which they used to take the deceased to the hospital where he was attended to and discharged. She told the court that since the deceased’s place was far she found him a place at her neighbor to spend the night and at 5. 00 am his situation worsened necessitating her to look for a boda boda which she used to take him back to Molo Hospital. Upon arrival at the hospital, the deceased was referred to Nakuru Provincial General Hospital and the hospital offered an ambulance to take him there but unfortunately he died before they left the said Hospital. She further stated that there was street light at the crime scene and that the accused and one Chege were people known to her.

8. PW3, George Ngugi Kabugi, was the one who took the deceased to Molo hospital on 12th January, 2020 in his car.

9. PW4, Ibrahim Kahore Kamau, recalled on January 12, 2020 at about 11. 40pm he received a phone call from one John Chege that he had beaten and injured someone with the accused and they needed assistance to take him to the hospital. He proceeded to scene where he found his said brother, Paul Wainaina, the accused, PW1, PW2 and husband to PW2. He saw the deceased bleeding profusely from the head injury and stated that he also accompanied him to Molo Hospital where he was treated, paid his medical expenses then went back home. The following day he learnt of his death.

10. PW5, Charles Maina, stated that PW1 screams necessitated him to visit the scene where he found the deceased on the ground bleeding profusely from the head. He also confirmed there were street lights at the scene.

11. PW7 & PW8, Caroline Atemo Andayi &Fredrick Otuoma were a sister and father to the deceased respectively. They confirmed they identified the deceased body for post mortem examination and that they saw his body which had severe injuries on the head.

12. PW9, Dr. Rodgers Namusi was a doctor who produced a post mortem report (P.Exhibit 1) that was prepared by his colleague Dr. Deborah Wang’alia. He stated that his said colleague conducted a post mortem examination on the body of the deceased on January 14, 2020 and formed an opinion that the cause of death was as a result of severe head injury due to blunt force trauma to the head.

13. PW10, Cpl Edwin Koech, was the Investigating Officer. He stated that he charged the accused person based on the evidence of PW1. That Chege the other suspect disappeared

14. In this case the cause of death is not in doubted. The postmortem produced shows that the deceased died as a result of severe head injury due to blunt force trauma to the head.

15. PW1 was the only eye witness. She stated that she witnessed the accused and one John Chege hit the deceased on the head. PW2 confirmed that she heard the commotion went out and found the deceased bleeding profusely. PW4 stated that his brother called and informed him that he had beaten and injured the deceased with the accused. PW1, PW2 & PW4 confirmed the accused was present at the scene. There were street lights at the crime scene and a kiosk where it was alleged a piece of timber used to hit the deceased was gotten from.

16. From the foregoing and without delving into the merits of the case for the prosecution’s case it is evident that the prosecution has established a prima faciecase to warrant the accused being put on the defence in terms of section 306 (2) of the Criminal Procedure Code.

DATED, SIGNED AND DELIVERED VIRTUALLY THIS 5TH MAY 2022. Mumbua T. Matheka,Judge.In the presence of;CA EdnaAccusedCounsel for Accused: Ms. Kiama N/ACounsel for state: Mr. Kihara