[2022] KEHC 17012 (KLR)

Republic v Mwangi (Criminal Case 24 of 2019) [2022] KEHC 17012 (KLR) (10 November 2022) (Ruling)

Neutral citation: [2022] KEHC 17012 (KLR)

Republic of Kenya

In the High Court at Bomet

Criminal Case 24 of 2019

RL Korir, J

November 10, 2022

Between

Republic

Prosecutor

and

Sospeter Muchiri Mwangi

Accused

Ruling

1. Sospeter Muchiri Mwangi (accused) was charged with the offence of murder contrary to section 203 as read with section 204 of thePenal Code, cap 63 Laws of Kenya. The particulars of the offence as recorded in the Information were that on the 5th day of October 2019, at Mulot Sunset Trading Centre, within Bomet county, murdered Samuel Ndungu Njunge.

2. The accused took plea on October 15, 2019 before Dulu J where he pleaded not guilty to the charge of murder. Consequently, the matter proceeded to trial and the prosecution called six (6) witnesses.

3. The prosecution filed their submissions October 19, 2022. They submitted that a prima facie case had been laid out against the accused. To demonstrate this, they submitted that victim’s death and the cause thereof were proven by the post-mortem report presented by PW4 dr Mutai. Secondly, that the accused person was identified as the person who caused the fatal injuries on the victim as testified by PW3 who raised an alarm prompting members of the public to chase after the accused when he ran away. Lastly, the prosecution submitted that the accused inflicted extensive and severe injuries which were intended to kill or cause grievous harm to the deceased.

4. Section 306 of the Criminal Procedure Code, cap 75 Laws of Kenya provides as follows: -(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.

5. At this point, the duty of the court is to consider the evidence against the accused person as presented by the prosecution. In the case of Republic v Jagjivan M Patel & Others (1) TLRthe court held as follows:-“All the court has to decide at the close of evidence of the charge is whether a case is made out against the accused just sufficiently to require him to make a defence, it may be a strong case or it may be a weak case. The court is not required at this stage to apply its mind in deciding finally whether the evidence is worthy of credit or whether, if believed, it is weighty enough to prove the case conclusively, beyond reasonable doubt. A ruling that there is a case to answer would be justified, in my opinion, in a borderline case where the court, though not satisfied as to conclusiveness of the prosecution evidence, is yet of opinion that the case made out is one which on full consideration might possibly be thought sufficient to sustain a conviction.”

6. Similarly, Trevelyan and Chesoni, JJ inFesto Wandera Mukando v The Republic [1980] KLR 103 stated thus:-“…we once more draw attention to the inadvisability of giving reasons for holding that an accused has a case to answer. It can prove embarrassing to the court and, in an extreme case, may require an appellate court to set aside an otherwise sound judgement. Where a submission of “no case” is rejected, the court should say no more than that it is. It is otherwise where the submission is upheld when reasons should be given; for then that is the end to the case or the count or counts concerned.”

7. In other words, the court must determine whether a prima facie case has been established by the prosecution against the accused. The term prima facie was defined in Words & Phrases, permanent Edition, 33 at pg 545as follows: -“Prima facie implies that evidence exists which, unless disproven, is sufficient to prove a certain fact or circumstance. Evidence that may be accepted as prima facie is any evidence which, if accepted at face value, supports the case, or a necessary element of the case. A prima facie case is that amount of evidence which would be sufficient to counter-balance the general presumption of innocence, and warrant a conviction, if not encountered and controlled by evidence tending to contradict it, and render it improbable, or to prove other facts inconsistent with it, and the establishment of a prima facie case does not take away the presumption of innocence which may in the opinion of the court be such as to rebut and control it.”

8. In a murder case, the evidence presented by the prosecution prima facie must demonstrate or prove the ingredients of the offence. These are laid out in section 204 of the Penal Code as follows:-(i)Death of the deceased person(ii)That the unlawful death was caused by the acts of the accused person; and9iii)That in causing the said death, the accused had malice aforethought.See Court of Appeal of Kenya decision in Johnson Njue Peter v Republic [2015] eKLR and the Nigerian case ofOgunleye Tobi v the State, LER [2019] SC 714/2017).

9. I have considered the evidence presented by the prosecution through the oral testimony of the witnesses and the exhibits tendered. Overall, the totality of the evidence prima facieestablish the three ingredients of the offence.

10. It is my finding therefore that the prosecution has established a prima facie case against the accused. He has a case to answer and is invited to elect his mode of defence in accordance with section 306 of the Criminal Procedure Code.

11. Orders accordingly.

RULING DELIVERED, DATED AND SIGNED AT BOMET THIS 10TH DAY OF NOVEMBER, 2022. ..........................R. LAGAT-KORIRJUDGERuling delivered in the presence of Mr. Njeru for the State, Mr.Kenduiwo for the Accused and Kiprotich (Court Assistant) and in the absence of the Accused.