[2016] KEHC 5469 (KLR)
The court found that the prosecution's evidence, if left unchallenged, could support a conviction for murder against each of the accused persons. The evidence included eyewitness accounts of the accused participating in the attack, the setting of fire to the deceased's premises, and the medical evidence confirming...
Source-derived case information.
- Citation
- [2016] KEHC 5469 (KLR)
- Parties
- Applicant: Republic; Defendant: Samuel Gitau Maina alias Stranger; Defendant: Stephen Waweru Ndungai alias Stevo; Defendant: Anthony Kamwenji Ndungu alias Ibrahim; Defendant: Stephen Mwangi Muthoni alias Arshvin; Defendant: Michael Thuo Gikaru
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 9 of 2013
- Procedural Posture
- Criminal Case / Ruling on Case to Answer After Close of Prosecution Case
- Outcome
- Each of the five accused persons has a case to answer and is put on his defence.
- Legal Topics
- Murder, Prima Facie Case, Criminal Procedure, Burden of Proof
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Samuel Gitau Maina alias Stranger
Defendant
Stephen Waweru Ndungai alias Stevo
Defendant
Anthony Kamwenji Ndungu alias Ibrahim
Defendant
Stephen Mwangi Muthoni alias Arshvin
Defendant
Michael Thuo Gikaru
Defendant
Procedural Posture
Criminal Case / Ruling on Case to Answer After Close of Prosecution Case
Legal Issues
- 1 Whether the prosecution has established a prima facie case against each accused person to warrant putting them on their defence.
- 2 Whether the evidence presented, if uncontroverted, could lead to a conviction for murder.
Ratio Decidendi
The court found that the prosecution's evidence, if left unchallenged, could support a conviction for murder against each of the accused persons. The evidence included eyewitness accounts of the accused participating in the attack, the setting of fire to the deceased's premises, and the medical evidence confirming death by burns. The court applied the principle from Ramanlal Trambaklal Bhatt v. R, holding that at this stage, it is sufficient that a reasonable tribunal could convict on the evidence presented. Therefore, a prima facie case was established against all five accused persons, necessitating that they be put on their defence.
Court Disposition
Each of the five accused persons has a case to answer and is put on his defence.
Orders
- Each accused person is put on his defence under section 306(2) of the Criminal Procedure Code.
- The accused are informed of their rights to give a sworn or unsworn defence and to call witnesses.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CRIMINAL CASE NO. 9 OF 2013
REPUBLIC.....................................................................PROSECUTOR
VERSUS
SAMUEL GITAU MAINA alias STRANGER...................1ST ACCUSED
STEPHEN WAWERU NDUNGAI alias STEVO.............2ND ACCUSED
ANTHONY KAMWENJI NDUNGU alias IBRAHIM.......3RD ACCUSED
STEPHEN MWANGI MUTHONI alias ARSHVIN............4TH ACCUSED
MICHAEL THUO GIKARU................................................5TH ACCUSED
RULING
The five accused persons face two charges of murder contrary to section 203 as read with section 204 of the Penal Code. In count 1 it is alleged that with others not before the court they jointly murdered Johnson Kiruthu Kagio on 23rd December 2012 at Mathare 3C in Starehe District within Nairobi County. In the second count it is alleged that on the same date and place as in count 1 with others not before the court they jointly murdered David Njoroge Kiige. All the five accused persons denied committing the two offences.
As at the time the hearing of this matter commenced before me on 14th March 2016, the case had taken over three years without taking off for trial. The 1st and 2nd accused persons are the first ones to be arraigned in court on 14th January 2013 in Criminal Case No. 9 of 2013. Later the 3rd accused was charged in Criminal Case No. 26 of 2013 and the 4th accused was charged in Criminal Case No. 33 of 2013. The prosecutor applied for consolidation of the three files. This was allowed on 13th March 2013 and the plea taken afresh. The court file remained No. 9 of 2013. On 19th November 2013 the prosecution brought to court the 5th accused in Criminal Case No. 103 of 2013 and sought to consolidate this file with No. 9 of 2013. This was allowed and again the plea was taken afresh. For reasons appearing in the court file records including these consolidations, this trial has delayed.
When finally the trial commenced before me on 14th March 2016 it took the court three consecutive days to hear nine prosecution witnesses after which the prosecution closed its case. The 1st and 2nd accused persons are represented by Mr. Jumba; the 3rd accused person is represented by Ms Omung’ala; the 4th accused by Mr. Oundu and the 5th accused by Mr. Tanui. This is a ruling to determine whether the evidence tendered by the prosecution establishes a prima facie case against the accused persons in order to put them on their defence.
The evidence by the prosecution is that following the death of one Michael Ndonye in Mathare 3C Nairobi in the early hours of 23rd December 2013 his mother accused the deceased Johnson Kiruthu Kagio (deceased in Count 1) of involvement and threatened the deceased and his family with death. Later that day in the evening, about 8. 00pm some young men including the accused persons started stoning the business premises of the deceased situated at Mathare 3C and the deceased’s car parked outside the bar. They poured some inflammable liquid on the car and set it ablaze. The fire spread into the building housing the bar and butchery. The deceased tried to intervene but was overpowered and pushed back into the burning building. Inside the building was his friend David Njoroge Kiige (deceased in Count 2). Both died inside the building after burning beyond recognition.
The five accused persons were arrested at different times and all were charged with two counts of murder. The doctor who examined the remains of the deceased persons confirmed the cause of death as 100% 3rd degree burns.
A “prima facie case” has been defined in Ramanlal Trambaklal Bhatt v. R [1957] E.A 332 to mean a case 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 (emphasis added). In the same case (Ramanlal) the court held the opinion that at this stage of the trial when the court is required to determine whether a prima facie case has been made out against the accused person, the court is not required to decide with finality whether the evidence is worthy of credit, or whether if believed it is weighty enough to prove the case conclusively. This final determination can only properly be made when the case for the defence has been heard.
My careful analysis of the evidence by the prosecution therefore leads me to hold the view that the prosecution has established a prima facie case against each of the five accused persons. Consequent to that view I make a finding that each of the five accused persons has a case to answer. I will and do hereby proceed to put each of the five accused persons on his defence. I take this chance to inform them of their rights under section 306 (2) of the Criminal Procedure Code to inform this court whether they will give a sworn or unsworn defence and whether they are calling any witnesses to their defence. It is so ordered.
Dated, signed and delivered this 11th day of April 2016.
S. N. MUTUKU
JUDGE
In the presence of:
Ms Onunga for the prosecution
Mr. Jumba for the 1st and 2nd accused persons
Ms Omung’ala for the 3rd accused person
Mr. Oundu for the 4th accused person
Mr. Tanui for the 5th accused person
All the five accused persons
Mr. Daniel Ngumbi, the court clerk