[2023] KEHC 23922 (KLR)

Republic v Onsarigo (Criminal Case 26 of 2019) [2023] KEHC 23922 (KLR) (12 October 2023) (Ruling)

Neutral citation: [2023] KEHC 23922 (KLR)

Republic of Kenya

In the High Court at Machakos

Criminal Case 26 of 2019

MW Muigai, J

October 12, 2023

Between

Republic

State

and

Albert Omwega Onsarigo

Accused

Ruling

1. The accused herein Albert Omwega Onsarigo 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 27th July, 2019 at Githunguri Centre in Utawala area, Athi River Sub-County within Machakos County murdered Wesley Kengele Momanyi.

2. The Mental Assessment dated 21/08/2019 carried out by Dr. Sarah Wawa of Machakos Level Five Hospital and Report filed in Court on 29th August 2019 found the accused person Fit to Plead. The Accused person herein took plea on 16/09/2019 whereof after the charges were read out to the accused person in a language that he understood he pleaded Not Guilty. A plea of Not Guilty was entered on his behalf.

3. The Accused person was represented by Mr. Omondi Advocate while the state was represented by Mr. Machogu and later Mr. Mwongera.

4. The hearing commenced on 29/09/2020 and the Prosecution called a total of Twelve (12) witnesses in support of the case.

Evidence 5. The hearing commenced before Hon.D.K.Kemei J on 29/9/2020.

6. PW.1 Victor Osoro Kerage told the Court that on 27/07/2019 at around 8. 00 p.m he was in company of the deceased Wesley Momanyi herein at a bar when somebody dressed in a police uniform entered the said bar and ordered everybody to be silent as he sought to deal with a certain lady. PW.1 and the deceased sneaked out through the back exit. Later on, the deceased realized he had left his bag with tools of his trade inside the bar and decided to go back and fetch it. Suddenly there were gunshots and PW1 was unconscious. PW1 was taken to nearby hospital as he was shot on the left hip and then to Kenyatta National Hospital. The deceased was also shot and taken To Kenyatta National Hospital. He was interrogated by Police Officers while in the hospital. He stated he did not see the assailant as he was outside. He pointed at the Accused person in Court and identified the Accused person as the Police Officer he earlier saw in the Bar and came to learn later his name was Onsarigo he did not know him before that evening. When he saw him at the Bar that night he appeared slightly drunk and he had a rifle. He identified the rifle in Court which was marked MFI-1I AK47 Assault Rifle

7. In cross – examination by Mr. Omondi, Pw.1 stated he was at the Bar and took keg beer. The accused exchanged words with the proprietor of the bar. The accused person stood at the door and he did not talk to him but exchanged words with the Bar Operator. The Accused person had no problem with the patrons but the proprietor. Pw1 was the first one to be shot. The bullet went through his left hip while the deceased was hit on the stomach. The bullet hit both of them. He did not see the accused firing at them.

8. Pw.2 Jamin Omeke Togoncho told the Court that on 27/07/2019 around 8 pm he was at Horizontal Bar enjoying a drink when a police officer entered and ordered the Proprietor Josephine Moraa to do as is the practice always but she advised him to go on with his patrol duties and come back later. He ordered everyone not to leave the bar until his demands were met. PW2 stood up and managed to get out through the rear exit. On coming round to the front PW2 saw saw Victor (Pw1) and Momanyi (deceased) holding onto their stomachs as they had been shot. The victims were rushed to hospital. The accused herein is the one who had stood at the bar door and ordered everybody not to leave and he is the one who had shot the two victims. He had appeared slightly drunk. He had a raincoat and carried a rifle.

9. In cross – examination he stated that he did not see accused shooting the deceased. Accused did not speak with the deceased as he had no problem with him. They were many people in the Bar he did not count them. The accused stood at the front door and ordered that nobody should leave the bar. Some patrons ran through the door.He was not present when the shot was fired. He did not see anyone attempting to snatch the rifle from the Accused person. The Accused person appeared drunk and he was also drunk. He relied on his statement-DMFI-1. He stated that members of the public came to the scene but he could not tell the Accused person’s whereabouts. It was not true that people poured water on the blood on the ground and he did not see people assaulting the Accused person.

10. Pw3 Denis Ongera Bosire stated that on 27/7/2019 he was at Horizontal Bar. He met his friend Onsarigo and took a moonwalker drink. he was seated near the door. Suddenly, a police man stood at the door and ordered the Proprietor one Moraa to give him a drink that nobody should leave the bar. She said that she had not made any sales and he said he was not leaving the Bar until he was served beer. His friend one Osoro attempted to escape through the main door. Later he saw one of the patrons already injured. He saw the police officer heading towards the tarmac road while lifting his rifle. The deceased’s intestines were out and they assisted him to a nearby hospital and then they were taken to Kenyatta hospital. On 28/7/2019 he learnt that the deceased succumbed to his injuries. He recorded his statement at Mlolongo Police Station.The Police Officer who was involved was/is the Accused person and he was dressed in Police Uniform and held a rifle which was/is similar to the one in Court.

11. In cross – examination by Mr. Omondi he stated Pw1 Victor Osoro attempted to go through the main door but was barred by the accused as the two struggled and he was injured The Accused person asked Moraa to do the usual and that he would not leave until she met his demand. He feared for his life. The Accused did not talkto patrons save for Moraa the Proprietor. The patrons forced their way out even though the accused barred them at the door. He was inside the bar when the gunshot went off. After the shot was fired those who had moved outside rushed back. The shot was fired outside the bar. The Accused was talking in Ekegusu language and he heard him outside as a bodaboda rider. He did not see anyone pour water onto the ground stained with blood.

12. Pw4 Omambi Benard Obiero told the Court that on 27/7/2019 at night he heard a gunshot from a nearby bar. He rushed there only to find his friend Osoro (PW1) already injured. He also found the deceased injured and lying on the floor. They assisted both Pw.1 and the deceased to Rheina Hospital from where they were referred to Kenyatta National Hospital. The deceased was later confirmed to have died at around 4. 00 am while Osoro’s injuries were contained. While at the scene he saw a police man running away while lifting his rifle. He identified the accused as the police officer.

13. In Cross - Examination by Omondi he stated that he did not see the accused shooting the victims. He found PW1 had lost consciousness. He relied on his statement. He earlier came from Church SDA with PW1 and accompanied members of the public to the scene. He saw the rifle and he did not see anyone pouring water at the blood stained ground.It was not true that the Accused was attacked by members of the public.

14. Pw5 Josephat Bebo Kerago told the Court that on 27/7/2019 he was at his house at around 8 pm when he heard some gunshot. Then Benard Obiero Omambia (Pw4) called him and requested him to rush to the scene since his brother had been injured. He rushed to Lerna dispensary where he established that his brother had been injured on his left hip while the other one (deceased) had his intestines out hanging loosely. They were transferred to Kenyatta National Hospital. At around 4. 00 am they were informed by the doctors that the deceased had succumbed to his injuries.

15. In Cross Examination by Omondi he stated that Victor Osoro (PW1) was also shot. He was testifying about the victims he did not know the Accused person and he did not witness the incident.

16. Pw6 243203 APC Ann Mumbua attached at Njiru Critical Infrastructure Protection Unit told the Court that on 27/7/2019 at 7 pm she and her two colleagues, Dominic Kibet and the accused herein picked their rifles from the armoury and were to proceed to Embakasi Ranching for patrol duties. Each one of them was issued with AK 47 assault rifle loaded with 20 rounds of 6. 72 calibre ammunition. They were allocated patrol duties which they carried out then later relaxed.

17. The accused left them and headed towards Haven hospital. After about twenty minutes their boss Inspector Ndungu called them to inquire on what had happened at Githunguri. He informed them that there had been gunshots in that area where the accused is said to have been spotted there. She and Dominic decided to return to the camp only to find the accused unconscious. He was lying on a bench and his clothes had dust. He could not talk. His rifle had already been seized from him. He was rushed to Nairobi West Hospital. The accused was his colleague with whom they had worked for about two years. He was with them on the material date before he excused himself and left the two of them.

18. In Cross- examination by Mr. Omondi she told the Court that Embakasi Ranching Company Ltd deals with land matters. She was in company of the accused for night duties. Accused was in good health and not drunk. Accused did not tell her where he was going. They found accused lying unconscious and appeared to have been attacked going by the bruises on his body. She do not know how the accused sustained the injuries. The accused left and after twenty minutes the incident happened. She did not go to the scene of the crime and cannot tell if accused was involved.

19. Pw7 NO. 240571 APC Dominic Kibet based at Njiru Sub-County told the Court that on 27/7/2019 at 7 pm he had been deployed to join his colleagues Ann (Pw6) and Accused on patrol duties. He had issued accused with AK 47 rifle, serial No. 59010540 containing 20 rounds of ammunition of 7. 62 mm calibre, Ann Mumbua had serial No. 59013253 with same amount of ammunition and his was 59010894 with similar amount of ammunition. They went to patrol Embakasi Ranching Company Ltd Land.

20. Later the accused excused himself and went away towards their camp. After twenty minutes they received a call from inspector Ndungu who alerted them that some gunshots had been heard within Githunguri area. They rushed to their camp and found accused lying down while unconscious. He had bruises on his body while his uniform was dirty. He learnt that he had been subjected to a mob justice. He later received his rifle and upon examining it he learnt two ammunitions had been used as he only found 18 remaining. The accused was rushed to hospital. He identified the rifle as the one the accused had.

21. In Cross Examination by Mr. Omondi he stated that it was Chief Inspector Mathenge who prepared the inventory. He found 18 live ammunition in the magazine. The ones in Court were/are 15 and could not tell where the other 3 bullets were. He knew nothing of spent cartridges. He found that the Accused was assaulted by members of the public. It could be possible that the members of public could have been out to grab his rifle. The report lodged is that the members of public had attacked the accused. He did not visit the scene. The Ruai DCI officers are the ones who reached the scene first and who later handed over the matter to Mlolongo police station. He was not aware that the case was moved to Mlolongo Police Station due to laxity.

22. This Court took over the matter/hearing after providing both the Prosecution and Defense with copies of Court proceedings and on 2/2/2022 the Accused person’s advocate Ms Emily Nyongesa elected under Section 200-201CPC to proceed with the hearing from where the matter had stopped.

23. Pw.8 Charles Nyandwati Omboga told the Court that in 2019 he was in Machakos – at Utawala. On 27/07/2019 he arrived at his wife’s water business situated along Utawala/Githunguri road at around 7. 00 p.m. They were on the road near the stage and there were other businesses. He saw a drunk Police Officer and he was staggering, he heard noises outside and then saw the police officer mount on a motor cycle with a gun hanging on his chest and left.

24. Later, after they closed their business, on their way home they found a group of people who spoke Kikuyu, he left his wife there and walked on and found a group who were speaking Kisii who asked him if he knew Kengele and he said he was his brother’s son and then informed him that the deceased (his nephew) had been shot by a police officer and was taken to Lerna Hospital. He proceeded to Lerna Hospital where he was informed that he was referred to Kenyatta National Hospital. Upon arrival at Kenyatta Hospital, he found PW1 was treated but the deceased was waiting to be taken to Theatre. They waited he was taken in and later he was informed that his nephew; son to his twin brother had passed on. He contacted them and he saw his nephew and took him to the Mortuary. He did not know the Accused person but had seen him.

25. In Cross – examination by Mr. Omondi for the accused person he stated that the accused person was drunk or looked drunk. It was 7. 30 pm at the road and streetlights were on. He saw the Accused on the other side of the road, he looked like he wanted to fall and had a gun hanging on the neck/chest was in full uniform and had the gun and he boarded the motor bike. He did not see his clothes were dirty or that he was beaten up. The deceased was bleeding after he was shot and the stomach content were/was out and he bled to death. The issue of if he was taken to hospital earlier he would have survived, he did not know about it. He found 2 people at the hospital one had the injury on the side and he survived. His nephew was shot with a gun and the stomach was outside.

26. Pw9 Andrew Kanyi Gachie Consultant Pathologist & Forensic Specialist from Kenyatta National Hospital told the Court that he conducted the Post mortem examination on the deceased that was carried out on 1/8/2019. The body was identified as that of Kengele Momanyi aged 22years old. He was identified by his Uncle Charles Obuga and Kennedy Nyaira.

27. During the examination he found that the deceased had extensive injury to the digestive system; perforation of the intestines and an injury to the kidney. The entry wound was difficult to determine as surgery was done. Extensive injury to the right kidney at 5cm, small intestine that had a defect of 10 cm and injury to the colon was 14 cm. There was evidence of extensive bleeding 500ml of blood. The rest of the organs were normal. He formed an opinion that the cause of death was multiple internal injury with massive bleeding due to a gunshot injury. He filled the Post Mortem Form and signed it on 1/8/2019 and produced the Form as Exhibit 6.

28. In cross – examination by Mr. Omondi for the accused person he told the Court that the trajectory the gunshot went upwards and took a right side and affected the right kidney. He stated he was not a Ballistic Expert.

29. Pw.10 NO.67884 CPL Chris Nderitu previously of Ruai police station told the Court that on 27/07/2019 at around 2058 hours he received information of a shooting involving a police officer and a civilian. He proceeded to the scene in the company of PC Musyoki,PC Masinde & PC driver Ngoi at Githunguri stage B which lies in Machakos County Mavoko area.

30. On arrival at the scene he found it was at Base Bar. He saw blood but water was poured all over that means the scene was disturbed. The Bar was closed and the owner was nowhere to be seen. He got information that there were victims of shooting who were rushed to Kenyatta National Hospital. The officer involved was nowhere to be seen as he had walked away after the incident. After afew minutes, Duty Officer Ruai, Inspector Githire & CID Officer George Oswe arrived at the scene and on searching recovered 1live ammunition of 7. 62mm and I cartridge.

31. He and the rest of the crew later proceeded to Kenyatta National Hospital where he found the 2 victims at Casualty being attended to. They were Kengele Momanyi (deceased) who was shot and injured in the interior abdomen and Victor Osoro (Pw1) who was shot and injured on the left hip. He then received a call from the Duty officer informing him that the officer (accused) was rushed to Nairobi West Hospital. He proceeded to Nairobi West Hospital where he found the said officer admitted with bruises on both hands and he complained of headache. Later he was informed that one of the victims critically injured had died.

32. In cross – examination by Mr. Omondi Advocate for the accused he told the Court that he was the 1st police officer to arrive at the scene and the scene appeared disturbed/interfered with by public and owner at the Bar as it was outside the Bar. The people they found there were not willing to give information of what happened. The people he found there took the victims to the hospital. They found 1 ammunition and 1 cartridge.

33. PW.11 No. 235220 Chief Inspector James Onyango from DCI told the Court that he has been a firearm Examiner for the last 8 years. On 11/08/2019 he received exhibits submitted from DCI Mlolongo. The exhibits were 1 round of ammunition marked as exhibits A1, spent cartridge case, 1 spent cartridge case – Exhibit A2 and AK 47 assault rifle – serial No. 59010540 – Exhibit B 1 magazine – exhibit C and I rounds of ammunition marked D1 – D18. PW11 corrected the Report that it was not 9 rounds of ammunition but 18.

34. The Exhibit Memo form of 1/8/2019 was to ascertain certain issues. The findings were;

35. Exhibit B is a Chinese made AK47 assault rifle a direct copy of Russian AK47 assault rifle in caliber 7. 62mm.the Exhibit rifle was successfully test fired by3 rounds of ammunition picked at random from Ex D1-D 18. Exhibit A1 a round of ammunition in caliber 7. 62x39mm. it is live as it was successfully test fired in Exhibit B.Exhibits D1-D18 are 18 rounds of ammunition in caliber 7. 62 x 39 mm. Each of them is live as 3 of them picked at random were successfully test fired in Exhibit B above.

36. After examination he formed the opinion that exhibit A1 was indeed fired from Exhibit B - AK 47 Assault Rifle serial No. 59010540.

37. Cross – examination by Mr. Omondi for the accused person he stated that as an expert he cannot determine who pulled the trigger of 6. 72 calibre ammunition issued with AK47 issued to each of the Officers.He did not know where the other round was/is the Investigation Officer would inform the Court. He stated that he was a Police Officer specifically assigned to Ballistic examination.

38. Pw.12 No. 81155 Cpl. Kariga Marigu of DCI Mlolongo. On 28/07/2019 at 8. 30 a.m. he was summoned by his in-charge and told to proceed to Kenyatta National Hospital where those affected by the shot out at Githunguri area were taken. Upon arrival at Kenyatta National Hospital he was informed that one of the two victims succumbed to death immediately on arrival and the other was admitted at ward Floor 5 wing C. He talked to the surviving victim (Pw1) in the ward and recorded his statement. He then proceeded to Nairobi West Hospital where the accused was admitted. After he was discharged from hospital he arrested him and preferred these charges against him. He then took the Rifle – AK47 Rifle and the rounds of ammunition to the Ballistic Experts for analysis on 1/8/2019.

39. On 27/9/2019 he recovered from Incharge Sifu Njiri Sub County the Inventory; Copy of Duty Rooster ;21/7/2019-27/7/2019;OB extract /copy 21/7/2019-27/7/2019; Copy of Arms Movement Register 26/27/7/2019 witnessed by PW12, Joseph Mathenge, PC Willy Korir & PC Maru.There were 13 people on duty including APC Albert Omwenga with AK47Rifle 59010540 with 20 rounds of ammunition.From Officers at Ruai Police Station he received AK47 Rifle, magazine & 18 rounds of ammunition. He visited the scene and he did not recover any spent cartridge. He prepared the Exhibit MemoForm and took the rounds of ammunition for examination. On the day he testified he had 17 rounds of ammunition and 3 cartridges.The ODPP Counsel sought adjournment to clarify the differences in the recovery of ammunition and the Defense Counsel opposed as it would prejudice the Accused person’s right to fair hearing.The hearing proceeded and PW12 read out contents of the Investigation Diary as follows; On 28/7/2019 at 8. 15 00hrs 18 rounds of ammunition were in the magazine. I spent cartridge was collected and 1 live ammunition was collected at the scene. In total there were 20 rounds of ammunition; 18 rounds of ammunition and 1 spent cartridge. He produced the exhibits; the Arms Movement Register of 27/7/2019Ex2, AK47 rifle Serial No 590150540 was issued to the Accused person and he signed; magazine Ex 5, Round of ammunition 16 Ex3, Spent cartridges 3 Ex 4, Duty Rooster-27/7/2019 Ex 8 and Inventory Ex9. He identified the Accused person as one whom he arrested from Nairobi West Hospital.

40. In Cross – examination by Mr. Omondi for the accused person PW12 stated that he investigated the matter and recorded the statements. He went to Ruai as the Accused person was alleged to have committed the offence within Athi river Sub County and nearest Police station is DCI Mlolongo. He was on duty and was assigned this case and the Duty Rooster would confirm this. He visited the scene on 27/7/2019 and other Officers from DCI Ruai visited the scene on 28/7/2019. The gun was assigned to the accused person. The gun was recovered from the accused person. The witnesses said they did not see who pulled the trigger, one can pull the trigger and other may not know. The accused person pulled the trigger as the one who was assigned the gun. There are instances where the public snatches the Police Officer the gun , in this case there was no such evidence, the gun was recovered from the Accused person. They conducted investigations and disclosed who pulled the trigger, the Accused person who had the gun can tell the Court who pulled the trigger.

41. Counsel for the Accused person counted 16 rounds of ammunition in Court. PW12 collected 18 rounds of ammunition that were in the magazine. I live ammunition was collected from the scene and 1 spent cartridge was collected from the scene. He stated that he had 19 rounds of ammunition and 1 spent cartridge and the ones in the magazine were 18 rounds. Live ammunition are 16 rounds of ammunition. He gave the Ballistic Expert 18 rounds of ammunition and in Court were 16 rounds of ammunition.PW12 confirmed that the Accused person was taken to the hospital but he was not aware of the Discharge summary and who brought it to Court.PW12 stated he did not know if the Accused person was attacked as Police officers are deployed in pairs.

42. The Prosecution closed its case on 22nd November, 2022. The Court gave the parties 21 days each to file and serve their written submissions.

Written Submissions Prosecution Submissions Dated 1/02/2023 43. The Prosecution relied on Republic vs Mohammed Dadi Kokane & 7 Others [2014] eKLR and Republic vs Daniel Musyoka Muasya Paul Mutua Muasya & Walter Otieno Ojwang Mombasa High Court No 42 of 2009 on ingredients of murder.

44. The Prosecution submitted that it availed 12 witnesses in order to prove its case and relied on four issues for determination as follows:-a.Was the accused involved in the murder of the deceased?b.Did the accused have malice?c.Was he accused identified appropriately?d.Was the cause of death as a result of the injuries inflicted?

45. On the issue of whether the accused was involved in the murder of the deceased the testimony of Pw1, Pw2, pw3, Pw4 and Pw8 witnessed the accused person come to the Horizontal bar and request for a bribe. The accused person insisted that nobody should leave the bar and Pw1 and deceased managed to get out of the bar using the back door which infuriated the accused and shot the deceased and Pw.1

46. On the issue 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.

47. In this instant case it is evident that the accused person had malice aforethought because he inflicted injury by using his firearm to injure the deceased and Pw1 shows the intention to cause death of or to do grievous harm whether that person is the person killed or not therefore the first limb suffices in this case.

48. On the issue of whether the accused was properly identified, the testimony of Pw.1, Pw.2, Pw.3 and Pw.4 clearly places the accused person at Horizontal Bar. Pw.8 also witnessed the accused person leaving the crime scene on a motor cycle when he was visibly drunk.

49. On the issue whether the cause of death was as a result of the injuries inflicted Pw.9 testified in Court that he filled the post mortem report. He stated clearly that the deceased’s cause of death was multiple injuries due to gunshot injury/wound. Pw.11 testified that the AK 47 rifle used by the accused was capable of firing and the bullet and cartridge recovered at the scene matched the rifle.

50. Reliance is 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 prima facie has been made out against the accused person sufficient enough to put him on his defense 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.

51. Also, in the case of Ramanlal Bhat v 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 defense.”

52. 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 defense, 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.”

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

Accused Person Submissions Dated 17/01/2023 54. On behalf of the Accused person it is submitted that the only issue for determination at this stage is whether the Prosecution was able to establish a prima facie case against the accused person.

55. In the case of Republic v Patrick Ong’au Okioma [2021] eKLR the Judge held thus;“The offence of murder is prescribed under section 203 of the Penal Code thus; “Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.” From this definition, the prosecution was expected to prove the following ingredients beyond reasonable doubt:a.The death of the deceased and cause of that death;b.That the accused committed an unlawful act or omission that led to the death; andc.That the accused committed the unlawful act with malice aforethought. 56. In the instant case nobody saw the accused person pulling the trigger to release the fatal bullet that caused the death of Mr. Wesley Kengele Momanyi therefore the evidence tendered was circumstantial.

57. Similarly, Josephine Monyenye Kiage alias Moraa who is the owner of the bar from the where the deceased died was not called to testify and no explanation was afforded by the prosecution as to why she was never called In spite of being the center of the dispute that led to the untimely death of the deceased.

58. Reliance is made in the case of Republic v Cliff Macharia Njeri [2017] eKLR where the Court in putting reliance on the Ugandan case of Bukenya and Others v Uganda [1972] EA 549 held thus;“Having considered the issue at hand I find that the prosecution failed to avail crucial witnesses in their case. I find that the prosecution failed to make available all witnesses necessary to establish the truth. The evidence adduced was barely adequate to establish the truth in this case. Consequently I find that this court is justified to make an adverse inference that the evidence of the uncalled witnesses would have tended to be adverse to the prosecution and that was the reason it was not called.

59. On the issue of malice afterthought all the witnesses who were at the scene of the happening ie Pw.1, Pw.2 and Pw.3 concurred that the accused person did not have problem with the deceased and did not engage him in any conversation. There is also no evidence of violence or intention to commit an offence is given by the witnesses.

Determination 51. 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.

52. 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;[Is]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”.

43. 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 it was said:-“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 defense is made, but rather hopes the defense 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 defense.”

44. In the instant case, on record the evidence recorded by previous Trial Court of PW2 PW3 PW6 PW7 & evidence taken by this Court PW8 place the Accused person on the fateful night 27/7/2019 at the scene and he had a rifle and gunshot(s) were fired and PW1 and the deceased were shot.

45. PW9 PW11 & PW12 gave expert evidence that confirmed the Deceased’s treatment and cause of death, the rifle and whether it was in good working condition or not and that the rifle was allocated to the Accused person as one of the Police Officers deployed on duty on is that on 9/2/2017 and was at the scene where the victims were shot. The totality of the evidence adduced by the Prosecution cumulatively confirm a prima facie case that warrants the Accused person to be placed on his defense.

Disposition 1. Upon this Court’s consideration of the totality of the evidence adduced and on record, the Prosecution has proved a prima facie case that warrants the Accused person to be placed on his Defense.

2. Further Mention for Directions on 19/10/2023.

RULING DELIVERED SIGNED & DATED IN OPEN COURT IN MACHAKOS ON 12/10/2023. (VIRTUAL/PHYSICAL CONFERENCE)M.W. MUIGAIJUDGEIN THE PRESENCE OF:ALBERT OMWEGA ONSARIGO THE ACCUSED PERSONNO APPEARANCE - FOR THE ACCUSED PERSONMR. MWONGERA - FOR THE STATEGEOFFREY/PATRICK COURT ASSISTANT(S)Accused: My Advocate stated he will be online.M.W. MUIGAIJUDGE