[2017] KEHC 2398 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KIAMBU

CRIMINAL CASE NO. 9 OF 2016

REPUBLIC..................................................................PROSECUTOR

VERSUS

RICHARD ITWEKA WAHITI.............................................ACCUSED

RULING ON NO CASE TO ANSWER

1. The Accused Person, Richard Itweka Wahiti (“Accused Person”) is charged with murder contrary to section 203 of the Penal Code as read together with section 204 of the Penal Code. He is accused of unlawfully killing Elizabeth Nyokabi Nginyu on 03/11/2014 at Kihingo village within Kiambu County.

2. The Prosecution presented ten (10) witnesses. The theory was a simple one: the Accused was an employee of the Deceased and lived in a house within the same compound as the Deceased. The narrative is that the relationship of the Deceased and Accused as Employer and employee got strained – in part fueled by the Accused Person’s ill feelings towards her male friend. This, the Prosecution narrative goes, motivated the Accused Person to murder the Deceased and bury her body in an unfinished house in her compound. The Prosecution presented DNA/forensic evidence which they say directly links the Accused Person to the Deceased’s death.

3. The Counsel for the Accused Person has submitted lengthy submissions requesting the Court to find that no prima facie case has been established by the Prosecution sufficient to put the Accused Person on his defence. The Defence’s position is that “the evidence is weak and at best supported by circumstantial evidence and cannot provide the basis for inferring guilt which must be proved beyond reasonable doubt…”

4. In particular, the Defence argues that when the Prosecution relies on circumstantial evidence to prove its case in a murder case, it is necessary for it to prove motive – yet no motive was proved in this case. In the circumstances, Defence argues that there can be no basis for inferring the guilt of the Accused Person using circumstantial evidence.

5. At this stage in the case, the Court considers submissions by the Prosecution and Defence whether the evidence presented warrants putting the Accused Person on his defence. The task of the Court at this stage is to decide if Prosecution has made out a sufficient case for the Accused Persons to be placed on their defence. The test to be utilised by the Court in making that determination was famously stated in the Bhatt –vs- R [1957] EA 332. In plain terms, the Court is expected to determine if there is enough reliable evidence to warrant the Court to hear from the Accused Persons or if the case should be stopped at this point.

6. The test was stated in the R v Galbraith [1981] 1 WLR1039thus:

(1) If there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty. The judge will of course stop the case. (2) The difficulty arises where there is some evidence but it is of a tenuous character, for example because of inherent weakness or vagueness or because it is inconsistent with other evidence. (a) Where the judge comes to the conclusion that the prosecution evidence, taken at its highest, is such that a [Court] properly directed could not properly convict upon it, it is his duty, upon a submission being made, to stop the case. (b) Where however the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness’s reliability ….and where on one possible view of the facts there is evidence upon which a [Court] could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to [proceed for Defence hearing]….There will of course, as always in this branch of the law, be borderline cases. They can safely be left to the discretion of the judge.

7. Here, the defence makes the twin argument that the case is solely based on circumstantial evidence and that an essential ingredient - motive -- is missing to prove the case through circumstantial evidence.

8. The Prosecution has submitted that the evidence on record sufficiently links the Accused Person with the murder and that several witnesses testified about the motive.

9. Consequently, it would seem that the disagreement is not whether there is motive or not but whether to believe the Prosecution witnesses or not about the alleged motive.

For the Court to come to a view of that it will be required to make a finding on the credibility of the witnesses. This would be inappropriate for the Court to do at this stage. At this stage in the proceedings, it is not appropriate for the court to take a view of the “weightness” and credibility and reliability of the evidence presented by the Prosecution. The Court can only rule that the Accused Person has no case to answer where it forms the view that the evidence presented is so hopelessly contradictory or so woefully unreliable that no reasonable tribunal could convict based on it. With respect, that is not the position here. Here there is enough the Prosecution has presented evidence which, “taken at its highest”, meaning without final determination as to its creditworthiness or weightiness (See R v Galbraith 73 Cr. App. R. 124) – a reasonable court could convict if no explanation is offered by the Defence. Consequently, in the circumstances, the Court finds that the Accused Person has a case to answer.

10. The case shall therefore be scheduled for Defence hearing.

Delivered at Kiambu this 2ndday of November, 2017.

……………....

JOEL NGUGI

JUDGE