[2022] KEHC 17025 (KLR)

Republic v Obara (Criminal Case 94 of 2014) [2022] KEHC 17025 (KLR) (Crim) (9 November 2022) (Ruling)

Neutral citation: [2022] KEHC 17025 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Case 94 of 2014

JM Bwonwong'a, J

November 9, 2022

Between

Republic

Prosecutor

and

P.C. Fredrick Obara

Accused

Ruling

1. The issue for determination before me is whether or not a prima facie case has been made out by the prosecution to require the accused to be put on his defence in terms of section 306 (2) of the Criminal Procedure Code (Cap 75) Laws of Kenya.The answer to the issue lies in the analysis of the prosecution evidence in light of the applicable law.It should be borne in mind that the accused is charged with murder contrary to section 203 as read with 204 of the Penal Code (Cap 63) Laws of Kenya, in respect of the deceased, Robinson Omunyasi Karatasi.

2. He pleaded not guilty to the charge. The prosecution called nine (9) witnesses in support of their case.Jacob Ominde Karatasi (Pw 1) told the court that on 27th September 2014, he met his elder brother and the deceased playing ‘skuti’ at the fundraiser for the funeral of his brother. At around 11. 30 pm, the accused and two officers met with the deceased, who was his elder brother. On September 27, 2014 he was present when the accused came in the company of two other police officers and Masaai guards. That a confrontation ensued leading up to the accused shooting the deceased.

3. Charles Ominde Lukani (Pw 2) told the court that on September 15, 2014, he was issued with a permit for fundraising for his late brother in Mukuru Kwa Rueben area in Nairobi. On September 27, 2017, at around 11 00 pm during the fundraising drive, police officers came to the scene. An argument ensued and he heard gunshots and he ran away. On coming back, he noticed that the deceased was lying down presumably dead. A group of youth gathered and went to the police station. The accused was at the OB desk, where his colleagues were asking him to explain what had happened. Members of the public denied the police access to the body as they waited for the media to arrive.The body of the deceased was taken the following day at around 6 am.

4. Caroline Ominde (Pw 3) told the court that on September 27, 2014, she was preparing food for those who had travelled for his brother’s funeral arrangements. The collection of the funds was taking place by the roadside. She heard two gunshots and went to the scene. On arriving at the scene, the body of the deceased was lying down with papers scattered everywhere. They left the scene and headed to the police station. Before she reached the police station, she received information that plain cloth police officers were attempting to take the body of the deceased. She returned to the scene and stopped them. She stayed with the body of the deceased until 6 .00 pm, when the police came and took it to the mortuary.No. 71XXX COP Benard Gituanja (Pw 4) testified that on September 27, 2014, he reported on duty together with the accused and three other colleagues. The accused was assigned patrol duties together with PC Chacha, PC Kinyanjui and PC Mghedi. That they finished the first patrol duty and thereafter went again leaving the accused with PC Chacha at the station. While on patrol, he received a call from the accused informing him that something was amiss at the station. Upon arriving, they found a mob who were very hostile to the accused. He went to the scene and found the body of the deceased.

5. NO. 88XXX PC Thomas Machiru Mghedi (Pw 5) told the court that on September 27, 2014, he was deployed at the Industrial area Police station with the accused, PC Kinyanjui, PC Chacha and PC Enkaronon. While on patrol, the accused who was on guard duty at the station, called notifying them that there was a problem at the station and that they should assist. At the station, they found rowdy members of the public who claimed that the accused had killed one of their own at a place they were conducting a funeral fundraising. They visited the scene and after receiving back up from the OCS. At the scene they found a panga that was next to his body.No. 72XXX CPL Galma Arero (Pw 6) testified that on September 27, 2014, he was attached to Mukuru kwa Reuben Police post with his duties being to issue rifles each loaded with 30 rounds of 7. 62 mm ammunition. That he issued firearms to four officers among them the accused at 6. 00 pm. At 4 00 am the following day, he received a call from Inspector Limo informing him of a shooting incident where two rounds of ammunition had been spent. The rifle was not returned to the armory and was taken over by DCI Makadara.

6. No. 95XXX PC Wambura Chacha (Pw 7) testified that on the material day, he was on duty at Mukuru Kwa Rueben Police post. The accused who was at the station guard informed him of a mugging at a funeral fundraising 3 kms away. He went to the scene with the Maasai guards. After a few minutes the accused came back with two people in handcuffs. A mob armed with crude weapons followed him to the station saying that a police officer had killed their relative and they wanted revenge. He testified that he did not go to the scene and his shift ended at around 8 am and went home to rest.No. 236XXX CI John Shegu (Pw 8), the investigating officer told the court that upon being directed to conduct investigations, he interrogated all witnesses and recorded their statements. The findings of his investigations were that the deceased was raising money for his deceased relative. The accused who had arrested two people passed by and asked for a permit for the gathering and when it was issued, he tore it and threw it. An argument ensued between the accused and the mourners at which point the accused cocked his AK-47 and shot the deceased. The gun issued to the accused had 28 rounds of ammunition as per the arms movement register and the two spent cartridges were recovered at the scene.

7. No. 234XXX IP John Kiplimo (Pw 9) told the court that on September 27, 2014, he received a call from the accused informing him that his life was in danger and he had discharged his firearm at Mukuru kwa Rueben, which may have fatally injured somebody. He reported the incident to his superior, theOCS Industrial Area Police Station. That they proceeded to the scene of crime but could not retrieve the body of the deceased due to the rowdy members of the public. After getting reinforcements, they were able to take the body to City mortuary.

The written submissions of the accused 8. Messrs Omenke Andenje & Co. Advocates filed written submissions in support of their application to have the accused acquitted. Their argument is that the accused has no case to answer.Counsel has submitted that the accused was a police officer attached to Mukuru Kwa Reuben. He was on duty on September 28, 2014, when a distress call/report was made at the police post by two Maasai watchmen. The accused responded to the distress call and arrested two suspects.They reported that some individuals were mugging passersby. While en route to the station, the accused encountered some people whom he ordered to disperse since the time allowed for holding the meeting had lapsed.

9. A commotion ensured in the process there was a fatal shooting.Based on the evidence led by the prosecution witnesses, counsel for the accused submitted that there were two issues that fell for determination. First, whether the prosecution had proved their case beyond. I will not consider this issue for reasons that will appear below in this rulingSecond, whether the accused has a case to answer. In respect of this issue, counsel submitted that the accused acted in self defence to protect himself against the deceased, who was charging at him with a panga. Counsel cited Republic v Joseph Chege Njora (2007) e-KLR, in which the Court of Appeal observed that the killing of a person is excusable, where the action of the accused causes the death of another person in the process of repelling a felonious attack as long as the force used is reasonable for that purpose.

10. Counsel also cited the National Police Act in Part B, which he submitted allows the use of force for self defence or to defend the life of another person.Additionally, counsel cited other authorities that restate the same principles that are applicable in cases of self defence and defence of another person.

The written submissions of the Republic 11. Ms. Peris Maina, learned prosecution counsel submitted that the fact of the death of the deceased was proved by Pw 1 and Pw 3, who were at the scene of crime. This was further corroborated by the post-mortem report. On who shot the deceased, the accused was armed and was at the scene of crime as narrated by Pw 1. Further, the two empty cartridges recovered from the scene were fired by the firearm issued to the accused. The weekly duty roster for deployment on the date in issue, and the evidence of Pw 1, Pw 4 and Pw 7 confirm that it was indeed the accused who fired the fatal shot.It was submitted that the accused aimed his AK 47 rifle at the deceased’s chest, which is a vital body organ and shot him. The inference is that the accused was aware that his act would result in severe chest injury. He then fled the scene. Further, the deceased was unarmed and vulnerable. There was therefore malice aforethought.

Issue for determination 12. I have considered the totality of the prosecution evidence in light of the applicable law. I find the following to be the issues for determination.1. Whether the prosecution has made out a case to warrant the accused to be put on his defence in terms of section 306 (1) and (2) of the Criminal Procedure Code (Cap 75), Laws of Kenya.2. Whether it is incumbent for the prosecution to proof their case beyond reasonable doubt at this stage.

Analysis and determination 13. The applicable law is found in section 306 of theCriminal Procedure Code (Cap 75) Laws of Kenya, which 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 record 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…..”

14. A definition as to what amounts to a prima facie case was explained in the case of Bhatt –vs- R [1957] EA 332, in which the Court of Appeal expressed itself on this issue 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 on full consideration might possibly be thought sufficient to sustain a conviction. This is perilously near to 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 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.”

15. At this stage of the proceedings, the standard applicable on whether a prima facie case has been made out is lower than the standard of proof beyond reasonable doubt, which applies at the conclusion of the full trial, after the accused person has been heard. The strength of the evidence establishing a prima facie case must be the sort of evidence upon whose strength, the court could convict if the defence offers no explanation.

Issue 2 16. I find that at this stage the prosecution is not required to prove their case beyond reasonable doubt. This proof is required at the end of the evidentiary hearing of both the prosecution and defence cases.It is for this reason that I declined to set out the submissions of counsel for the accused in respect of the first issue, that is, whether the prosecution had proved their case beyond reasonable doubt at this stage.I find that at this stage, I am not required to give reasons for my ruling, because I am not required to finally determine the credibility of the prosecution witnesses. This will be done after the close of the evidentiary hearings for both the prosecution and defence cases.

17. The test of a prima facie case, in terms expressed in the case of Bhatt vs R, has been met by the prosecution to warrant the accused person to be called upon to defend himself.In the premises, I find that the accused has a case to answer with the result that I hereby put him upon his defence.

RULING SIGNED, DATED AND DELIVERED IN OPEN COURT AT NAIROBI THIS 9TH OF NOVEMBER 2022. J M BWONWONG’AJUDGEIn the presence of-Mr. Kinyua court assistantMs. Peris Mina for the RepublicMr. Omenke for the accused