[2022] KEHC 11405 (KLR)

Republic v Ndege (Criminal Case 27 of 2018) [2022] KEHC 11405 (KLR) (14 July 2022) (Ruling)

Neutral citation: [2022] KEHC 11405 (KLR)

Republic of Kenya

In the High Court at Chuka

Criminal Case 27 of 2018

LW Gitari, J

July 14, 2022

Between

Republic

Prosecution

and

Julius Kithaka Ndege

Accused

Ruling

1. The accused person herein is facing the charge of murder contrary to Section 203 as read with Section 204 of the Penal Code (Cap 63 of the Laws of Kenya. It was alleged that on the 20th day of October 2018 at Kioru Village, Ntoroni Location, Tharaka North Sub-County within Tharaka-Nithi County, the accused person murdered one, John Kinyatta Ndatho.

2. After undergoing a mental assessment, the accused person was found to be fit to stand trial. He denied the charge and the matter proceeded to trial.

3. The prosecution called a total of 7 (seven) witnesses in support of its case against the accused person before closing its case on 22nd March 2022.

4. Section 306 (1) and (2) of the Criminal Procedure Code 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 recording 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 on his own behalf or make unsworn statement and to call witnesses in his defence…”

5. From the above provision, it follows that the only question for this court to determine at this stage is whether the prosecution has made out a prima facie case against the accused person sufficient to warrant this court to put him on his defence pursuant to the above provisions. In other words, this court is to decide whether the prosecution’s case, may possibly succeed on its own, though not necessarily.

6. Several authorities have established what constitutes a prima facie case. The leading authority is the case of Ramanlal T. Bhatt -v- Republic [1957] E.A. 332 where the court stated as follows:“(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.”It was further held that 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. In this case, it is this court’s duty to evaluate the testimony of each of the 7 (seven) prosecution witnesses facing the charge of murder facing the accused person. The evidence adduced by the prosecution witnesses can be summarized as follows:

8. PW1 is the widow to the deceased and the sister to the accused. PW2 is also a sister to the accused. PW3 is the son to PW1. PW4 is a neighbour to PW1 and PW5 is a brother to the deceased. PW6 and PW7 were the investigating officer and the doctor who performed a postmortem exam on the deceased respectively.

9. As per the evidence tendered, a fight broke out between the deceased and the accused on the material day. PW1, PW2, and PW3 witnessed the fight between the accused and the deceased on the material day. PW4 responded to screams after the fight broke and when she reached PW1’s home, she witnessed the accused trying to burn the deceased’s motor bike and saw the deceased before he was taken to hospital. As a result of the fight the deceased sustained fatal injuries and passed away at Chaaria Mission Hospital Cottolengo while undergoing treatment. The doctor (PW7) found that the cause of death was due to severe Hemorrhage due to gut perforation following cause, sepsis. This was a confirmation that external force cause the injury which lead to the death of the deceased. PW5 identified the deceased’s body for post-mortem examination. PW6 investigated the case and recorded witness statements. He found that there was sufficient evidence and proceeded to charge the accused with this offence.

10. From the evidence placed before this court, it is my view that the test of a prima facie case as was set out in the case of Bhatt -v- R (supra) has been met by the prosecution to warrant the accused person to be called upon to address the court in his defence.

11. In Republic -v- Samuel Karanja Kiria [2009] eKLR, the court held that giving reasons for such a finding at this point would amount to determining the case without giving the accused persons an opportunity to be heard. As such, no reasons need to be given for the finding at this stage as this court is yet to hear the accused’s explanation.I find that the accused has a case to answer and will proceed as provided under Section 306 of the Criminal Procedure Code (supra).

DATED, SIGNED AND DELIVERED AT CHUKA THIS 14TH DAY OF JULY 2022. L.W. GITARIJUDGE