[2022] KEHC 1247 (KLR)
The court found that the prosecution's evidence, including eyewitness testimony placing the accused at the scene with the deceased and a knife, and medical evidence confirming death by sharp force trauma, collectively established a prima facie case. The evidence, if unchallenged, could support a conviction for...
Source-derived case information.
- Citation
- [2022] KEHC 1247 (KLR)
- Parties
- Applicant: Republic; Defendant: Simon Ndung’u Wainaina
- Court
- High Court
- Court Station
- High Court at Murang'a
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 19 of 2020
- Procedural Posture
- Criminal Case / Ruling on Whether to Place Accused on Defence
- Outcome
- Accused placed on his defence under section 306(2) of the Criminal Procedure Code.
- Judges
- K Kimondo
- Legal Topics
- Murder, Prima Facie Case, Malice Aforethought, Circumstantial Evidence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Simon Ndung’u Wainaina
Defendant
Procedural Posture
Criminal Case / Ruling on Whether to Place Accused on Defence
Legal Issues
- 1 Whether the prosecution has established a prima facie case to require the accused to be placed on his defence.
- 2 Whether there is sufficient direct or circumstantial evidence linking the accused to the offence of murder.
- 3 Whether malice aforethought has been established at this stage.
Ratio Decidendi
The court found that the prosecution's evidence, including eyewitness testimony placing the accused at the scene with the deceased and a knife, and medical evidence confirming death by sharp force trauma, collectively established a prima facie case. The evidence, if unchallenged, could support a conviction for murder. The court applied the legal standard from Bhatt v Republic and R v Kipkering arap Koske, holding that the accused must be placed on his defence to answer the charge. The defence's arguments regarding lack of direct evidence and malice aforethought were found insufficient at this stage to warrant an acquittal.
Court Disposition
Accused placed on his defence under section 306(2) of the Criminal Procedure Code.
Orders
- The accused is placed on his defence to answer the charge of murder.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MURANG’A
CRIMINAL CASE NO. 19 OF 2020
REPUBLIC....................................................PROSECUTOR
VERSUS
SIMON NDUNG’U WAINAINA.........................ACCUSED
RULING
1. The accused is charged with murder contrary to section 203 as read with section 204 of the Penal Code.
2. The particulars are that on 19th August 2020 at Rokoroi village, Gatanga Sub-County within Muran’ga County, he murdered Dennis Wanjiri Mbugua.
3. He pleaded notguilty. The prosecution lined up tenwitnesses.
4. The issue is whether the evidence discloses a prima facie case sufficient to place the accused on his defence.
5. The learned prosecution counsel, Ms. A. Gakumu, filed submissions on 7th March 2022 with a list of authorities. In her opinion, the collective evidence of the ten witnesses is overwhelming and calls for a rebuttal from the accused.
6. Leaned defence counsel, Mr. T. Kariuki, has a contrary view. In his detailed submissions filed on 21st February 2022, he argued that there is no direct or reliable circumstantial evidence connecting the accused to the offence. He submitted that element of malice aforethought is completely absent. In a synopsis, he implored me to acquit the accused at this stage.
7. The accused and the deceased were cousins. They were also friends. According to their grandmother, Mary Nyambura (PW1), she was out gathering cattle feed on the morning of 19th September 2020. She then heard a distress call from her granddaughter, Mary Waringa (PW2). The latter was calling out loudly. When PW1 went to the road, she found the deceased bleeding in the stomach area.
8. According to Waringa (PW2), she was on her way to the shops. She found the accused and the deceased standing on the road. The accused asked her whether he could join her. When they reached where the deceased was, she saw the two greet each other with “a fist-bump” or in her lingo, kungoteana.
9. She went on for about 8 metres when she “heard someone fall down. It was Denis [deceased]. Ndung’u [accused] had a knife”. She testified that the deceased was “stabbed above the stomach”.
10. There is then the evidence of Dr. John Mathaiya (PW9). According to the pathologist death resulted from“chest injury due to a single penetrating sharp force trauma to the chest”.
11. Applying the precedents in Bhatt v Republic [1957] E.A. 332 and R v Kipkering arap Koske & another 16 EACA 135 (1949); and, upon the digest of the evidence of all the tenwitnesses, I find that the Republic has established a prima facie case against the accused.
12. Accordingly, under the provisions of section 306 (2) of the Criminal Procedure Code, I place the accused on his defence.
It is so ordered.
DATED, SIGNED AND DELIVERED AT MURANG’A THIS 29TH DAY OF MARCH 2022.
KANYI KIMONDO
JUDGE
Ruling read in open court in the presence of:
Accused person.
Mr. Waiganjo holding brief for Mr. Kariuki for the accused instructed by Tim Kariuki & Company Advocates.
Ms. A. Gakumu for the Republic instructed by the Office of the Director of Public Prosecutions
Ms. Susan Waiganjo, Court Assistant.