[2019] KEHC 1588 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NYERI

CRIMINAL CASE NO. 33 OF 2012

REPUBLIC

VERSUS

RICHARD GITHAIGA WACHIRA.....................ACCUSED

RULING

1. The accused was charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code; he was accused of having murdered Elizabeth Wambura Mwai on the 3rd day of October, 2012 at Giathugu Location in Nyeri County;

2. On the 22nd October, 2012 the accused entered a plea of Not Guilty; and the hearing of the matter commenced on the 8/11/2016 and at the hearings hereof the accused was at all times represented by Learned Counsel Miss Lucy Mwai whereas Ms. Gicheha was the Prosecuting Counsel for the State;

3. The prosecution called a total of ten (10) witnesses in support of its case; at the close of the prosecution case defence counsel was invited to make submissions as to whether the prosecution had made out a case that required the accused person to be called upon to defend himself;

4. Counsel for the accused stated that she relied on the evidence on record and

urged the court to consider the evidence adduced in totality and find that the prosecution had not made out a prima facie case against the accused person to warrant him being placed on his defence;

5. In response Prosecuting Counsel for the State submitted that she too relied on the evidence adduced by the prosecution and that it tendered sufficient evidence and prayed that the accused be put on his defence;

6. After hearing the rival oral submissions made by both counsel and after having evaluated all the evidence on record on the four key elements of the offence that needed to be proved by the state; the key elements being that the deceased died; the cause of death; that the accused committed the unlawful act or their acts of omission led to the death of the deceased; and lastly whether the accused had malice aforethought; refer to the case of Antony Ndegwa vs Republic (2014) eKLR;

7. It is this court’s finding that the prosecution evidence adduced on the house where the deceased’s body was found is the scintilla of evidence that links the accused to the commission of the offence; and this court is satisfied that the prosecution has established a prima facie case against the accused that warrants him being placed on his defence to answer to the charges; refer to the renowned case of Bhatt vs Republic (1957);

8. The accused is found to have a case to answer; his rights and options will be put to him for election before he presents his defence.

Orders Accordingly.

Dated, Signed and Delivered at Nyeri this 28th day of November, 2019.

HON.A.MSHILA

JUDGE