[2024] KEHC 7569 (KLR)

Republic v Otwori (Criminal Case E035 of 2021) [2024] KEHC 7569 (KLR) (20 June 2024) (Ruling)

Neutral citation: [2024] KEHC 7569 (KLR)

Republic of Kenya

In the High Court at Nakuru

Criminal Case E035 of 2021

HM Nyaga, J

June 20, 2024

Between

Republic

Prosecution

and

Erick Otwori

Accused

Ruling

1. The accused persons, Erick Otwori, was charged with murder contrary to section 203 as read section 204 of the Penal Code.

2. The Particulars were that on 20th July, 2021 at Tebere Area in Kamwaura within Kuresoi North Sub County in Nakuru he murdered Gideon Ondimo Nyakianga.

3. On 12th August, 2021 the charge was read to the accused person. He pleaded not guilty and thereafter the trial ensued with prosecution calling a total of six (6) witnesses in support of its case.

4. Upon the close of the prosecution case, only the state counsel presented their submissions.

5. The state Counsel submitted that the death of the deceased is undisputed and it was proved beyond reasonable doubt by way of medical evidence adduced by PW5.

6. With respect to whether the accused committed the unlawful act which caused the death of the deceased, the state counsel submitted that PW1 testimony that she saw the accused hit the deceased with a stick/piece of wood on the head was corroborated by PW5 who confirmed the said assault led to the deceased’s death.

7. In regards to whether the accused had malice aforethought, the counsel submitted that PW1’s testimony that the accused hit the deceased on the head with a stick, the fact that deceased died as a result of that injury and the fact that the accused fled the scene after the incident and did not bother to find how the deceased was fairing on or even offer to take him to the hospital, is evidence that he had malice aforethought.

8. The Prosecution thus submitted that it has established a prima facie case against the accused and urged this Honourable Court to place him on his defence.

Analysis & Determination 9. At this stage the court is to determine whether the prosecution has made out a prima facie case to require the accused person to be put on their defence.

10. Under section 306(1) of the Criminal Procedure Code, when the evidence of the witnesses for the prosecution has been concluded and the court is of the opinion that there is no evidence that the accused person committed the offence the court should, 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.

11. Under section 306(2) on the other hand, when the evidence of the witnesses for the prosecution has been concluded and the court is of the opinion that there is evidence that the accused person committed the offence, the court should proceed to put the accused to his defence and inform him of his right to call evidence in support of his case.

12. What then is a prima facie case? The test of this was settled in the case of Ramanlal T. Bhatt vs Republic [1957] E.A. 332 where the court expressed itself 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, 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 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.”

13. In Republic vs Abdi Ibrahim Owl [2013] eKLR a prima facie case was defined as follows: -“Prima facie” is a Latin word defined by Black’s Law Dictionary, 8th Edition as “Sufficient to establish a fact or raise a presumption unless disproved or rebutted”. “Prima facie case” is defined by the same dictionary as “The establishment of a legally required rebuttable presumption”. To digest this further, in simple terms, it means the establishment of a rebuttal presumption that an accused person is guilty of the offence he/she is charged with.

14. The court should therefore determine whether, based on the evidence placed before, it can convict the accused person if he chose not to give any evidence, as he is entitled to by the law.

15. It is imperative to note that “proof beyond reasonable doubt” is not the standard applicable to the finding of existence of a prima facie case for the purpose of a case to answer.

16. In May vs O’Sullivan [1955] 92 CLR 654 it was therefore held that:“When at the close of the case for the prosecution a submission is made that there is no case to answer, the question to be decided is not whether on the evidence as it stands the defendant ought to be convicted, but whether on the evidence as it stands he could lawfully be convicted. This is a really question of law.”

17. There is a danger in making definitive findings at this stage, especially where the Court is of the view that there is a case to answer. This position was well described and appreciated by Trevelyan and Chesoni, JJ in Festo Wandera Mukando vs. The Republic [1980] KLR 103. The court held that;“…We once more draw attention to the inadvisability of giving reasons for holding that an accused has a case to answer. It can prove embarrassing to the court and, in an extreme case, may require an appellate court to set aside an otherwise sound judgement. Where a submission of “no case” is rejected, the court should say no more than that it is. It is otherwise where the submission is upheld when reasons should be given; for then that is the end to the case or the count or counts concerned.”

18. From the foregoing and without delving into the merits of the prosecution’s case it is my opinion that the prosecution has established a prima facie case to warrant the accused person being put on his defence, in terms of section 306 (2) of the Criminal Procedure Code.

19. The accused person is to be explained of his rights under section 306(2) of the said Code.

DATED, SIGNED AND DELIVERED AT NAKURU THIS 20THDAY OF JUNE, 2024. H. M. NYAGA,JUDGE.In the presence of;C/A JenifferNancy for stateMs Mwaniki for accusedAccused present