[2023] KEHC 24392 (KLR)

Republic v Njambi (Criminal Case 1 of 2019) [2023] KEHC 24392 (KLR) (24 October 2023) (Ruling)

Neutral citation: [2023] KEHC 24392 (KLR)

Republic of Kenya

In the High Court at Machakos

Criminal Case 1 of 2019

MW Muigai, J

October 24, 2023

Between

Republic

State

and

Barbara Njambi alias Maggie

Accused

Ruling

1. The Accused person herein Barbara Njambi alias Maggie was charged with the offence of Murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars being that the Accused on 24th December, 2018 at Mlolongo area within Athi River Sub County of Machakos County murdered Rosebella Nasimiyu.

2. The Mental Assessment Report dated 11/02/2019 found the accused person Fit to Plead. The Accused person herein took plea on 27/03/2019 whereof after the charges were read out to her in a language that she understood and she pleaded Not Guilty. A plea of Not Guilty was entered on her behalf.

3. The Accused person was represented by Mr. Langalanga Advocate while the State was represented at different stages of trial by Mrs Abuga, Mr. Machogu and later Mr. Mwongera.

4. The hearing took off and the Prosecution called a total of Six (6) witnesses.

Evidence 5. Pw1 Martin Malaka Wamalwa testified that on 19th December 2018 he was informed by Veronicah Kere who was the deceased sister that the deceased was admitted at Kenyatta Hospital following a stabbing incident by unknown person. He stated that on 23rd December 2018 at 6pm, he received a call that the deceased had succumbed to her injuries. He then stated that he was present during the post-mortem exercise which was conducted on the 31st December 2018 and he was able to positively identify the body.

6. On cross examination he said that he identified the body of the deceased on 6th and was present when the body was dissected.

7. Pw.2 Caroline Lemba Matende testified that on 14th December 2019, she was at the 1st floor when the accused and the deceased ordered for some food and an argument ensued out of the said food. She stated that the accused, deceased and Shiru (PW4) had argued to the point of fighting, the accused then went up to her room on 2nd floor, Shiro and the deceased followed the accused to her room while telling her to pay for the food. She stated that the accused refused to pay for the food and Shiro pushed the accused as she wanted them to fight. She testified that the deceased was not holding anything however came to realize later that she had hidden it in her dress. She testified that the accused took a knife and stabbed the deceased however she managed to disarm her. The deceased was then rushed to hospital as she was bleeding profusely.

8. On Cross Examination by Mr. for the Accused person, she stated that the deceased and the accused were drunk and that the accused and the deceased were friends. The accused was the one who had paid for the deceased room. She further confirmed that it was the deceased and Shiro who followed the accused and that she did not see the knife.

9. Pw3 Victoria Ndunge testified that on the 14th December,2018 at around 2pm she was seated in her room No.8 on the second floor when she heard noise coming from the stairs in the guest house. She went there and found the deceased, accused and Shiru arguing and that from the argument, a fight ensued. She tried to separate them. She suddenly saw the accused holding a knife and witnessed her try to stab Shiru while she was able to disarm her, her fingers were injured. The deceased was bleeding around her ribs.

10. On Cross Examination by Mr. Langalanga for the Accused person, she told the Court that the accused and the deceased were friends and the accused had stayed at the deceased place for six months. She also confirmed that the accused and the deceased were drunk at the time of the incident. She stated that she did not witness who stabbed the deceased.

11. Pw4 Priscilla Wanjiru Mwangi testified that on the 14th December 2018 at around 2pm she was at the High Class Club in the company of the deceased waiting for food which they had ordered. She stated that the accused came and started disrupting them while they were taking photographs by abusing them. She told the accused to stop abusing her and decided to give her space by leaving but the accused insisted on following her. The accused pointed her finger on her neck telling her she will fuck her on her head. She stated that she got furious by the accused pushing her and she pushed her back. The deceased separated them. The food which they had ordered was brought to the table and the accused pushed the plates which scattered on the floor and she then left. She stated that they then followed her to demand for the payment of the spilled food. They met at the staircase and upon confrontation, a fight broke out. She alleged that the accused then removed a knife and stabbed the deceased on her left rib which prompted PW2 to intervene to prevent the accused from stabbing her too in which event PW2 was injured on her right hand fingers. She rushed the deceased to Shalom Hospital while bleeding profusely from her left rib.

12. Pw5 PC Josephine Njoki testified that on 15th December, 2018 at around 10 am while on duty at Mlolongo Police Station, the deceased came in the company of PW4 who reported that she had been stabbed at the left rib by the accused. She stated that the deceased narrated to her what transpired on the 14th December, 2018 and she booked the report in the occurrence book and recorded the statement of the deceased and PW4 and later arrested the accused person and released her pending investigation. On 26th December 2018, she received a report that the deceased had succumbed to the injuries in Kenyatta Hospital. On 26th December 2018, she escorted the accused to Mavoko Law Courts where she had filed a miscellaneous application to detain her for 7 days. On 2nd January 2019, postmortem examination was conducted at Kenyatta Hospital, she later escorted the accused to Machakos High Court to be charged for the offence of Murder.

13. Pw6 Dr.Obiero Okoth testified that he conducted a postmortem examination and came to a conclusion that the cause of death was peritonitis secondary to penetrating abdominal and chest injury consistent with stab wound.

14. On 27/07/2022 the prosecution closed its case and the court directed the parties to file and exchange their written submissions.

Prosecution Submissions Dated 10/05/2023 15. The Prosecution submitted that it availed ten (6) witnesses in support of its case and raised the following issues for determination namely;-a.Was the accused involved in the murder of the deceased?b.Did the accused have malice?c.Was the accused Identified properlyd.Was the cause of death as a result of the injuries inflicted?

16. On the issue of whether the accused was involved in the murder of the deceased the testimony of Pw1, PW2,& PW4 placed the accused person at the crime scene.

17. On whether the accused had malice Section 206 of the Penal Code states that malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances:-a.an intention to cause the death of or to do grievous harm to any person, whether that person is the person actually killed or not;b.knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether that person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused;(c)an intent to commit a felony;(d)an intention by the act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony.In the present case it is evident that the accused person had malice aforethought because he inflicted injury on the deceased by stabbing him with a knife.

18. On the issue of whether the cause of death was a result of the injuries inflicted, the PW.6 Dr. Obiero Okoth testified that he filled the postmortem report as he was the one who conducted it and concluded that the cause of death was peritonitis secondary to penetrating abdominal and chest injury consistent with stab wound.

19. Reliance was made in the case of Ronald Nyaga Kiura –vs- Republic [2018] eKLR wherein paragraph 22 it is stated as follows:-“It is important to note that at the close of prosecution, what is required in law at stage is for the trial court to satisfy itself that a prima facie has been made out against the accused person sufficient enough to put him on his defence pursuant to the provisions of Section 211 of the Criminal Procedure Code. A prima facie case is established where the evidence tendered by the prosecution is sufficient on its own for a court to return a guilty verdict if no other explanation in rebutted is offered by an accused person.

20. Also in the case of Ramanlal Bhat -Vs- Republic [1957] EA 332 at 334 and 335 relied on by the state the Court stated as follows:-“It may not be easy to define what is meant by a “prima facie case” but at least it must mean 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.”

21. Similarly in R. v. Jagjivan M. Patel & Others 1, TLR, 85 the Court stated;-“All the Court has to decide at the close of evidence of the charge is whether a case is made out against the accused just sufficiently to require him to make a defence, it may be a strong case or it may be a weak case. The court is not required at this stage to apply its mind in deciding finally whether the evidence is worthy of credit or whether, if believed, it is weighty enough to prove the case conclusively, beyond reasonable doubt. A ruling that there is a case to answer would be justified, in my opinion, in a border line case where the court, though not satisfied as to conclusiveness of the prosecution evidence, is yet of opinion that the case made out is one which on full consideration might possibly be thought sufficient to sustain a conviction.”

22. The Prosecution finally submitted that by availing testimonies of the six witnesses as well as documentary evidence it has proved its case beyond reasonable doubt and the accused ought to be placed in his defence under Section 306 (2) of the Criminal Code.

Accused Person’s Submission Dated 21/6/2023 23. The Accused submitted that section 306 (1) provided: “ 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 of the 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 behalf or make unsworn statement and to call witnesses in his defence.”

24. Reliance was placed on the case of Malaysian Court in PP v Datoseri Anwar bin Ibrahim No.3 of 1999 which defined what constitutes a prima facie case.

25. It was submitted that in criminal trials the burden of proof is always on the prosecution. Reliance was placed on the case of Sanjil Chattai v The State [1985] 39 WLR 925

26. PW1, PW2 and PW4 stated that there was confrontation between the accused, deceased and corroborated by PW4. They all confirmed that the accused after having a confrontation went to her room upstairs but the deceased and PW4 still followed her while demanding for her to pay for the food they had ordered. They confirmed that they were all drunk and had a fight with the accused. The accused therefore did not have the intention to commit the offence of murder.

27. It was finally submitted the accused had no intention to commit the offence therefore the prosecution has not made out a prima facie case to warrant the accused put on his defense.

Finding 28. The evidence was recorded by Trial Court Hon.DK Kemei J of PW1 and was recalled on 31/5/2022, this Court heard and recorded the evidence of PW2 PW3 PW4 PW5 PW6. At the close of the Prosecution case, this Court read through the Court record and documentary exhibits produced during trial and considered the totality of the evidence on record.

29. In the case of Anthony Njue Njeru vs Republic Court of Appeal No 77 of 2006; the Court determined the scope and content of case or no case to answer Ruling by the Court as follows;"Was there a prima facie case to warrant the trial court to call upon the appellant to defend himself? It is a cardinal principle of our law 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 prosecution the case is merely one “which on full consideration might possibly be thought sufficient to sustain a conviction”.

30. The issue of what is a prima facie case in criminal trials was clearly explained in Ramanlal Trambaklal Bhatt V R [1957] E.A. 332 at p. 334-335 where the Court stated:-“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, the case is merely one:-“Which on full 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. It is true, as Wilson, J., said, that the court is not required at that stage to decide finally whether the evidence is worthy of credit, or whether if believed it is weighty enough to prove the case conclusively: that final determination can only properly be made when the case for the defence has been heard. It may not be easy to define what is meant by a “prima facie case,” but at least it must mean 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.”

31. From the evidence on record, PW1 stated that she was called that the deceased Rose Bella the deceased was admitted at Kenyatta National Hospital. He went to hospital and found her in ICU and she succumbed to her death on 23/12/2018. He identified the deceased and witnessed the conduct of deceased’s Post Mortem on 31/12/2018. The deceased sustained injuries on her left side of her body.

32. From the evidence on record, PW2, testified that she knew the Accused person and the deceased as they worked in the High-Class Club. On 14/12/2018, the Accused and deceased were drinking and ordered food. She was on 1st Floor sitting on the stairs and she saw the Accused and deceased were fighting. The Accused left to her room on 3rd Floor. Shiroh and deceased beat up the Accused person as she demanded payment for her room. They poured her food and demanded the Accused person to pay for the food. She went to her room and came down the stairs. Shiroh pushed the accused person and as the Accused was dressed in a long dress (dera) and she came and stabbed the deceased on the ribs with a knife as she wanted to stab the deceased again, Shiroh held the knife and snatched the same from her. The deceased was bleeding profusely and she was taken to hospital.PW2 identified the knife in Court.

33. PW3 also witnessed the Accused, Maggie who was drunk, stab the deceased with a knife which was on the floor. PW3 took the knife, the deceased was taken to hospital and the Accused person to the Police Station. She also confirmed having witnessed the arguments and fights between the accused, deceased and PW4.

34. Pw4, testified on 14/12/2018 at 2 pm she was in the company of others taking photographs and the Accused person Maggie came to interfere and abused them. They left her and she followed them and threatened to cut her on the head, she pushed her so that she could leave her, the deceased came between them and when the food was brought, the accused who was drunk, knocked the food and walked away up the stairs. PW4 and deceased pursued the Accused person to pay for food. They went up the stairs, the accused came and removed a knife and as PW3 intervened; the Accused person stabbed the deceased.

35. Pw6, testified that he conducted the postmortem and came to a conclusion that the cause of death was peritonitis secondary to penetrating abdominal and chest injuries consistent with the stab wound.

Disposition 36. Upon this Court’s consideration of the totality of the evidence adduced before this Court and the evidence on record, the Prosecution has proved a prima facie case ‘’……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 defense.”

37. The evidence on record discloses commission of the criminal offence of murder c/s 203 of the Penal Code and is sufficient to warrant the Accused person to be placed on her defense.

38. The law requires that the Accused exercises the legal right as prescribed under Sections 306 CPC.

It is so ordered.

RULING DELIVERED DATED SIGNED IN OPEN COURT IN MACHAKOS ON 24TH OCTOBER,2023 (VIRTUAL/PHYSICAL CONFERENCE).M.W. MUIGAIJUDGE