[2022] KEHC 11423 (KLR)

Republic v Mwenda & another (Criminal Case E001 of 2021) [2022] KEHC 11423 (KLR) (21 July 2022) (Ruling)

Neutral citation: [2022] KEHC 11423 (KLR)

Republic of Kenya

In the High Court at Chuka

Criminal Case E001 of 2021

LW Gitari, J

July 21, 2022

Between

Republic

Prosecution

and

Morris Mugambi Mwenda

1st Accused

Francis Kinyua Mbuko

2nd Accused

Ruling

1. The accused persons herein jointly face the charge of murder contrary to Section 203 as read with Section 204 of the Penal Code (Cap 63 of the Laws of Kenya).

2. It was alleged that on the night of 11th October 2020 and 12th October 2020 at Chogoria sub-location, Chogoria Location, in Maara sub-county within Tharaka-Nithi, the accused persons unlawfully murdered Hilda Kagendo Visiti.

3. The accused persons denied the charge and the matter proceeded to trial.

4. The prosecution called a total of 7 (seven) witnesses in support of its case against both accused persons. On 24th January 2022, the prosecution finally closed its case.

5. The issue for this court to determine at this stage is whether the prosecution has made out a prima facie case against the accused persons sufficient enough to warrant this court to put them on their defence pursuant to the provisions of Section 306 of the Criminal Procedure Code. In other words, this court is to decide whether the prosecution’s case, may possibly succeed on its own, though not necessarily.

6. The leading authority on what constitutes a prima facie case is the case of Ramanlal T. Bhatt -v- Republic [1957] E.A. 332 where the court stated:“(i)The onus is on the prosecution to prove its case beyond reasonable doubt and a prima facie case is not made out if at the close of the prosecution, the case is merely one which on full consideration might possibly be thought sufficient to sustain a conviction.(ii)The question whether there is a case to answer cannot depend only on whether there is 'some' evidence irrespective of its credibility or weight sufficient to put the accused on his defence. A mere scintilla of evidence can never be enough; nor can any amount of worthless discredited evidence.”The court stated that the test of a prima facie case is one on which a reasonable tribunal properly directing its mind to the law and the evidence could convict if no explanation is offered by the defence.

7. It is the duty of this court to evaluate the weight of the testimonies of the prosecution witnesses against the charge of murder facing the accused persons. I have considered the testimony of each of the 7 (seven) prosecution witnesses together with the exhibits that were produced before this court. In my view, the said evidence meets the threshold that was set out in the case of Bhatt -v- R (supra). It follows that the accused persons herein have a case to answer.

8. At this point, this court does not need to give its reasons for this finding as it is yet to hear the explanations of the accused person if any. In addition, it is trite that giving reasons for this finding at this stage would amount to determining the case without giving the accused persons an opportunity to be heard (See: Republic -v- Samuel Karanja Kiria[2009] eKLR).

9. It is therefore sufficient at this stage to inform the accused persons whether they have a case to answer and give them a chance to be heard.

Conclusion: I find that based on the evidence tendered by the prosecution, I find that a prima facie case has been established to warrant the accusd person to be put on their defence as charged. They will proceed as provided under Section 306 (c) of the Criminal Procedure Code, (Cap 75 Laws of Kenya) and indicate whether they will give their defence on oath or unsworn. They will also indicate whether they intend to call any witnesses.

DATED, SIGNED AND DELIVERED AT CHUKA THIS 21ST DAY OF JULY 2022. L.W GITARIJUDGE21/7/2022Ruling has been read out in open court.L.W. GITARIJUDGE