[2022] KEHC 12441 (KLR)

Republic v Nicholas Kipkemei (Criminal Case E040 of 2021) [2022] KEHC 12441 (KLR) (14 July 2022) (Ruling)

Neutral citation: [2022] KEHC 12441 (KLR)

Republic of Kenya

In the High Court at Eldoret

Criminal Case E040 of 2021

RN Nyakundi, J

July 14, 2022

Between

Republic

Prosecution

and

Nicholas Kipkemei

Accused

Ruling

1The accused herein was charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code. The particulars of the offence are that on the night of June 5, 2021, in Lemook Location, Kapseret Sub County within Uasin Gishu County, Nicholas Kipkemei murdered Simeon Kibungei alias Kaka.

2The accused pleaded not guilty to the charge. He was represented at the trial by Mr Omboto advocate and the prosecution was conducted by prosecution counsel Muguru. The prosecution called a total of six (6) witnesses to prove the ingredients of the offence beyond reasonable doubt constituting the following: 1. The death of the deceased.

2. The death of the deceased was unlawful.

3. That in causing death there was malice aforethought on the part of the accused.

4. That the accused was positively identified as the one who caused or participated in the killing of the deceased.

3At the close of the prosecution case the defence counsel Mr Omboto in compliance with section 306 (1) of the Criminal Procedure Code made a submission of a no case to answer in favour of the accused.

4The Criminal Procedure Code section 306 (1) provides as follows:“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…..”

5Whereas I note that the phrase prima facie is not defined under any of the legislation that governs criminal law, it is extensively defined in legal texts, precedents and case law commentaries. In Mozley and Whiteley’s Law Dictionary 11th Edition a prima facie case is defined as:“A litigating party is said to have a prima facie case when the evidence in his favour is sufficiently strong for his opponent to be called on to answer it. A prima facie case then is one which is established by sufficient evidence, and can be overthrown only by rebutting evidence adduced by the other side.”

6The legal principles in the case of R T Bhatt v Republic [1957] EA 332 – 334 & 335 defined what constitutes a prima facie case. The Court of Appeal of Eastern Africa stated thus:“Remembering that the legal onus is always on the prosecution to prove its case beyond reasonable doubt, we cannot agree that a prima facie case is made out if, at the close of the prosecution case, the case is merely one which on fully consideration might possibly be thought sufficient to sustain a conviction. This is perilously near suggesting that the court would not be prepared to convict if no defence is made, but rather hopes the defence will fill the gaps in the prosecution case. Nor can we agree that the question whether there is a case to answer depends 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.”

7The definition of what constitutes a prima facie was tackled in the persuasive authority decided by Malaysian Court in PP v Datoseri Anwar bin Ibrahim no 3 of 1999 2CLJ 215 at pg 274 – 275 where Augustine Paul J made the following observations:“A prima facie case arises when the evidence in favour of a party is sufficiently strong for the opposing party to be called on to answer. The evidence adduced must be such that it can be overthrown only by rebutting evidence, must be such that, if rebutted, it is sufficient to induce the court to believe in the existence of the facts stated in the charge or to consider its existence so probable that a prudent man ought to act upon the supposition that those facts existed or did happen. As this exercise cannot be postponed to the end of the trial, a maximum evaluation of the credibility of witnesses must be done at the close of the case for the prosecution before the court can rule that a prima facie case has been made out in order to call for the defence.”

8From the evidence placed before me, I am satisfied that the test of a prima facie case has been met by the prosecution to warrant the accused person to be called upon to answer. The test to be applied here is as expressed under section 306 of the Criminal Procedure Code and buttressed by the legal principles in the cited authorities.

9In the premises, the accused person is hereby called upon to answer the charge as per the steps outlined under section 306(2) as read together with section 307 of the Criminal Procedure Code.It is so ordered.

DATED, SIGNED AND DELIVERED AT ELDORET THIS 14THDAY OF JULY, 2022. ............................R NYAKUNDIJUDGEIn the presence of:-Mr MugunAccused