[2022] KEHC 13469 (KLR)

Republic v Mwema & 8 others (Criminal Case 05 of 2017) [2022] KEHC 13469 (KLR) (6 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13469 (KLR)

Republic of Kenya

In the High Court at Makueni

Criminal Case 05 of 2017

GMA Dulu, J

October 6, 2022

Between

Republic

Prosecution

and

Daniel Mwema

1st Accused

Mutunga Nzioka King’oo

2nd Accused

James Mutisya Mwati

3rd Accused

Michael Kyalo Mutunga

4th Accused

Boniface Kimondiu

5th Accused

James King’oo Kaleli

6th Accused

James Mathuku Ngomoli

7th Accused

Michael Mutune Matheka

8th Accused

David Kasanga Kaleli

9th Accused

Ruling

1. The nine (9) accused persons herein stand charged with murder contrary to section 203 as read with section 204 of the Penal Code. The particulars of the offence are that on 11th February 2017 at Mangala trading centre, Kasikeu Location in Mukaa Sub-County within Makueni County with others not before court, jointly murdered Geoffrey Kasyoki Kamuya.

2. By the close of the prosecution case, the prosecution called four (4) witnesses, and the defence counsel filed written submissions on case to answer, while the prosecution relied on the evidence on record. I thus have to determine whether the accused persons have a case to answer, in order to put them on their defences.

3. At this point of determining whether there is a case for each of the accused persons to answer, this court is required to determine whether the prosecution has established a prima facie case against each of the accused persons before it can put them on their defence.

4. What constitutes prima facie case, was considered by the Court of Appeal for East Africa in the case of Ramanlal Bhatt –vs- R(1957) E.A 332 wherein the court stated that a prima facie case is established when the evidence tendered by the prosecution is sufficient on its own for a court to return a guilty verdict if no other explanation is offered by an accused person in rebuttal.

5. In the present case, indeed, the deceased was killed. The major consideration for this court now is whether any of the accused persons killed the deceased. Each has to be connected to the killing through evidence.

6. The evidence from the prosecution witnesses on record is that the deceased was killed by a big group or mob. Some of the accused persons were mentioned by some prosecution witnesses as having been seen carrying weapons or bows and arrows. It was broad daylight.

7. No witness however, stated that he saw any of the accused persons hit the deceased, or hold him. From the evidence of theprosecution witnesses and Investigating Officer on record, it is apparent that the accused persons were arrested mainly because they were members of a group that supported sand harvesting and the deceased was a member of another group which opposed sand harvesting. The two groups clashed and the deceased was a front runner of the group that opposed sand harvesting, and the deceased died.

8. No evidence was however, tendered specifically connecting any of the accused persons directly with the killing of the deceased. In that situation therefore, I find that the prosecution has not established a prima facie case as defined in the case of Ramanlal Bhatt –vs- R (supra), against any of the accused persons herein to justify this court putting any of them on their defence.

9. Again, in accordance with the long established principle that an accused person is presumed innocent until proved guilty, which is codified under Article 50 of our Constitution, it is not the function of a trial court to put an accused person on his or her defence merely with the hope that he will implicate himself. Such act will infact violate the principles of fair hearing contained in Article 50 of the Constitution.

10. Though submissions from counsel have suggested conducting of an inquest. In my view this is not a case for ordering an inquest. The first reason is that, after a whole trial has been conducted to conclusion of the prosecution evidence, an orderto conduct an inquest will be unfair on those who have undergone trial. The second reason is that, from the way this case progressed in court, it appears that there are no readily available witnesses willing to testify. I doubt if witnesses will be readily available for an inquest. I will thus not order an inquest.

11. I thus find that all the nine (9) accused persons have no case to answer. None is guilty. I thus acquit each of the nine (9) accused persons of the offence charged.

DELIVERED, SIGNED & DATED THIS 6THDAY OF OCTOBER 2022, IN OPEN COURT AT MAKUENI.……………………………….George DuluJudgeRLG.MKN.HCCRC 05 OF 2017 Page 3