[2018] KEHC 8036 (KLR)
The court found that the prosecution had adduced sufficient circumstantial evidence, including the accused's prior altercation with the deceased's family, the discovery of the deceased's body with injuries consistent with assault, and the presence of the accused's cap at the scene. The accused's subsequent flight...
Source-derived case information.
- Citation
- [2018] KEHC 8036 (KLR)
- Parties
- Applicant: Republic; Defendant: Ngala Kivoto
- Court
- High Court
- Court Station
- High Court at Kitui
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 19 of 2015
- Procedural Posture
- Criminal Case / Ruling on Case to Answer at Close of Prosecution's Case
- Outcome
- Accused found to have a case to answer and ordered to be put on his defence.
- Judges
- LN Mutende
- Legal Topics
- Murder, Circumstantial Evidence, Burden of Proof, Prima Facie Case
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Ngala Kivoto
Defendant
Procedural Posture
Criminal Case / Ruling on Case to Answer at Close of Prosecution's Case
Legal Issues
- 1 Whether the prosecution has established a prima facie case against the accused to warrant putting him on his defence.
- 2 Whether the circumstantial evidence adduced is sufficient to require an explanation from the accused.
Ratio Decidendi
The court found that the prosecution had adduced sufficient circumstantial evidence, including the accused's prior altercation with the deceased's family, the discovery of the deceased's body with injuries consistent with assault, and the presence of the accused's cap at the scene. The accused's subsequent flight and apprehension further supported the prosecution's case. Applying the standard set out in Ramanlal Trambaklal Bhatt v. Republic and Section 306(2) of the Criminal Procedure Code, the court held that a prima facie case had been established, warranting the accused to be put on his defence to explain the circumstances surrounding the death of the deceased.
Court Disposition
Accused found to have a case to answer and ordered to be put on his defence.
Orders
- The accused is put on his defence as per Section 306(2) of the Criminal Procedure Code.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KITUI
CRIMINAL CASE NO. 19 OF 2015
REPUBLIC...............................................................PROSECUTOR
VERSUS
NGALA KIVOTO.............................................................ACCUSED
R U L I N G
1. Ngala Kivoto,the Accused, is charged with the offence of Murder contrary to Section 203as read with Section 204of the Penal Code (Cap. 63), Laws of Kenya.Particulars of the offence are that on the 18thday of June, 2015at Kavete Villagein Mutomo Sub-county,within Kitui County,jointly with others not before Court murdered Gideon Kisomo Ndoyo(Deceased).
2. Facts of the case are that on the 18th June, 2015at about 7. 00 p.m.PW8 Gedion Mwendwawas on his way home from the shop when he encountered the Accused, his uncle. He accused him of grazing animals on his land and he assaulted him. He went home and informed PW1, Josephine Mulewa Gedionhis mother, and the Deceased, his father and cousin of the Accused. On receiving the report, the Deceased decided to go and find out from the Accused why he assaulted his son. In the meantime the Accused went in search of PW8. PW1 went out and tried convincing him to wait for the issue to be sorted out the following day. The Accused reminded her how their herd of animals was destroying his crop. When she begged him to leave he removed a stick that he had concealed beneath his clothes and left. They waited for the Deceased but he was not returning home. Two (2) of his children decided to look for him. They found his motionless body some approximately 200 meters away from their home alongside the footpath. Beside the body they saw a cap that they believed belonged to the Accused.
3. PW7 No. 37394 Sergeant William Kipropreceived a report of murder and moved to the scene at 2. 30 a.m. They collected exhibits and removed the body which they escorted to Kitui District Hospital.
4. On the 19th June, 2015PW3 Onesmus Mulwa Kyamatawho resides at Voo Mutomowent back home at 6. 30 p.m.and found a stranger, the Accused herein. He was seeking for a job. He had an old identity card which bore the name Ngala Kivo.He gave him menial work. He worked and received wages on casual basis. On 23rd June, 2015he heard news about a person who had murdered his cousin at Kyatune.He notified the police of the Accused’s presence on his farm. He was arrested and subsequently charged.
5. The body of the Deceased was examined. PW10 Dr. Cosmas Mutisyawho did the autopsy formed the opinion that the cause of death was the frail chest and severe head injury caused by high energy blunt force.
6. In the case of Ramanlal Trambaklal Bhatt vs. Republic (1957) EA 332the Court stated that:
“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’s, the case is merely one which on full consideration might possibly be thought sufficient to sustain a conviction….. 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.”
7. At the close of the Prosecution’s case the circumstantial evidence adduced was sufficient to have the Accused called upon to explain what transpired. In the premises, I find the Prosecution having established a prima faciecase warranting the Accused to be put on his defence per the provisions of Section 306(2)of the Criminal Procedure Code.
8. It is so ordered.
Dated, Signed and Deliveredat Kitui this 7thday of February,2018.
L. N. MUTENDE
JUDGE