[2023] KEHC 23574 (KLR)

Republic v Nyang'au & another (Criminal Case E006 of 2022) [2023] KEHC 23574 (KLR) (12 October 2023) (Ruling)

Neutral citation: [2023] KEHC 23574 (KLR)

Republic of Kenya

In the High Court at Nyamira

Criminal Case E006 of 2022

WA Okwany, J

October 12, 2023

Between

Republic

Prosecution

and

Zacharia Oberi Nyang'au

1st Accused

Henry Misiga Nyang'au alias Joshua

2nd Accused

Ruling

1. The Accused herein were charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code. The particulars of the charge on the Information were that on the 26th day of January 2017 at Bonyaiguba Village, Bonyaiguba sub-location in Nyamira South sub-county within Nyamira county, jointly with others already before the court, the accused murdered Isaac Onyinge Machora.

2. The Accused took plea before Ochieng J. (as he then was) when they denied the charges. A plea of not guilty was entered and the matter proceeded to full trial where the Prosecution called a total of 5 witnesses.

3. PW1, Dennis Okweri Machora testified that he witnessed the Accused persons in the company of other people, pelting the deceased with stones.

4. PW2, Joseph Machora testified that the deceased and the accused had a dispute over quarry stones. His testimony was that the dispute led to a physical confrontation that resulted in the death of the deceased.

5. PW3, Mary Nyaboke, testified that she witnessed the physical confrontation that led to the death of the deceased.

6. PW4, IP Silas Owino Owenga and PW5, Sgt. Rebecca Kathoka, were the Police Officers who investigated the case, arrested the accused and charged them with the offence of Murder.

7. The duty of the Court, at this stage, is to consider the evidence tendered by the Prosecution in order to establish whether a case has been made out against the Accused persons. This means that, the Court must determine whether there is a rebuttable presumption pointing to the guilt of the Accused persons based solely on the evidence tendered by the Prosecution. In this regard, it is not the business of this Court to delve into the substance of the case to determine the guilt or innocence of the Accused persons as that can only be done at the judgment stage should the Accused be placed on their defence. This principle was expressed by the Court of Appeal in Anthony Njue Njeru vs. Republic,Criminal Appeal No. 77 of 2006 (2006) eKLR thus: -“Taking into account the evidence on record, what the learned Judge said in his ruling on no case to answer, the meaning of a prima facie case as stated in Bhatt’s case…, we are of the view that the appellant should not have been called upon to defend himself as all the evidence was on record. It seems as if the appellant was required to fill in the gaps in the Prosecution evidence. We wish to point out here that it is undesirable to give a reasoned ruling at the close of the Prosecution case, as the learned Judge did here, unless the Court concerned is acquitting the accused.”[See also Ojwang J.’s decision (as he then was) in Republic vs. Karanja Kiria, Criminal Case Number 13 of 2004, Nairobi (2009) eKLR].

8. Section 306 of the Criminal Procedure Code outlines the issues that a court must consider in determining whether a prima facie case has been made out 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…..

9. The Court of Appeal in Ramanlal Trambaklal Bhatt vs. R [1957] E.A 332 at 335, aptly explained what a prima facie case is as follows:-“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’s case, the case is merely one in which on full consideration might possible 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 …..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 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, properly directing its mind to the law and the evidence could convict if no explanation is offered by the defence”.

10. From the evidence on Record, it is clear that the unlawful death of the deceased occurred and that the Accused are alleged to have committed the offence. This means that the Court can convict the Accused persons on the said charge, if they were to fail to tender their own defence. In essense, a prima facie case has been made out by the Prosecution.

11. It is therefore my finding that the Prosecution has established a prima facie case against the Accused persons. Accordingly, i find that each one of them has a case to answer. The 1st and 2nd Accused are therefore called upon to elect their mode of defence in accordance with the provisions of Section 306 of the Criminal Procedure Code.

12. Orders accordingly.

RULING DATED, SIGNED AND DELIVERED AT NYAMIRA VIA MICROSOFT TEAMS THIS 12TH DAY OF OCTOBER 2023. W. A. OKWANYJUDGE