[2023] KEHC 24853 (KLR)

Republic v Soita & another (Criminal Case 38 of 2016) [2023] KEHC 24853 (KLR) (3 November 2023) (Ruling)

Neutral citation: [2023] KEHC 24853 (KLR)

Republic of Kenya

In the High Court at Eldoret

Criminal Case 38 of 2016

JRA Wananda, J

November 3, 2023

Between

Republic

Prosecution

and

Edwin Nyongesa Soita

1st Accused

Prisca Nanjala alias Everline

2nd Accused

Ruling

1. The accused persons were charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars of the offence are that on 10/05/2016 at Jerusalem village in Mbaraka sub-location in Lugari District within Kakamega County they murdered one Gregory Augo.

2. From the record, the accused persons were first presented before Court on 19/05/2016 before G.K. Kimondo J. Mr. Marube Advocate was appointed to represent the accused persons. They were then taken to the Moi Teaching and Referral Hospital where mental assessment was conducted and both accused persons certified fit to stand trial. After a series of hiccups, they eventually took plea on 14/06/2016. The information and ingredients of the charge were read and explained to the accused in the Kiswahili language, they denied the charge and a plea of not guilty was entered.

3. After further proceedings touching on the issue of bail/bond and attempted plea bargain and also adjournments, the hearing eventually commenced on 3/10/2018 before S.M. Githinji J who partly took the evidence of one witness. Subsequently, by consent of the parties, the trial commenced afresh before E. Ogola J who took the evidence of PW1 – PW6 after which the prosecution closed its case. Upon the Judge being transferred, I took over the matter and during taking of directions under Section 200(3) of the Criminal Procedure Act, the defence elected not to ask for recall for any witnesses and asked that the matter proceeds from where it stopped. It was then agreed by consent that I proceed to rule on “case to answer” on the basis of the material on record. Pursuant thereto, the proceedings were typed. Both the prosecution and defence informed the Court that they had no intention of filing Submissions on “case to answer”.

4. Regarding the evidence presented, PW1, Caroline Nekesa testified that the deceased was a child that she had lived with, on 10/05/2016 she was seated in her compound and the deceased was working at a neighbour’s home, she saw the accused persons approach the deceased whom they called, it was about 9 am, the accused were mother and son, she heard the accused persons asking the deceased why he was involved with one Mama Osama, after some altercation, she saw the accused persons hitting the deceased, the 1st accused hit the deceased on the stomach then used a stick to hit him on the neck and the deceased fell down, the 2nd accused then used the back of a hoe to repeatedly hit the deceased on the head, the deceased fell down bleeding, a crowd formed and the deceased was taken to Lumakanda hospital where he was pronounced dead. She identified the alleged murder weapons – hoe and stick.

5. PW2, Scholastica Nafula Situma testified that the deceased used to school with her children, the accused were her neighbours, on 10/05/2016 her son and the deceased were working at a neighbour’s home, she was inside the house when at 9 am she heard the raised voice of the 2nd accused arguing and asking the deceased why “he was bringing” issues of one Mama Osama to the 2nd Accused’s house, Mama Osama was also a neighbour, in the course of the argument, the 1st accused emerged and took a log from the fence which he used to hit the deceased in the middle part of the body, the deceased fell down, the 2nd accused then used a hoe to repeatedly hit the deceased, PW2 screamed and a crowd formed, the accused persons ran away, the deceased had wounds on the head, nose and shoulders, he was rushed to hospital and she later heard that the deceased had died. She also stated that the accused persons were mother and son and she too, identified the alleged murder weapons - log (stick) and hoe.

6. PW3, Raphael Masoni, testified that on 10/05/2016 he was working together with the deceased in the compound of a neighbour when at about 9 am, the 1st accused appeared and called the deceased who went as called, soon an argument ensued between the 1st accused and the deceased culminating into a fight, the deceased fell down when he was hit with a log, the 2nd accused then joined in and hit the deceased with a hoe on the neck while he was already down, they rushed the deceased to Lumakanda hospital where he was pronounced dead. She also identified the alleged murder weapons – log (stick) and hoe.

7. PW4, Jackson Nyagol, testified that the deceased was his 1st born child, in May 2016 he attended a post-mortem exercise for the deceased where he identified the body.

8. PW5, Constable Michael Cherutich testified that he was the investigating officer in the case, on 10/05/2016 he accompanied the DCIO to the scene of murder at around 12. 30 pm, where he found the body of the deceased lying at his mother’s house, the body was bleeding from the mouth, nose and ears, the house of the accused persons had been set on fire, at the scene he collected the alleged murder weapons - jembe and stick - by that time the accused persons had already been arrested, he took testimonies from some witnesses at the scene, on 12/05/2016 he attended the post mortem, he is the one who moved the body to the mortuary, he established what had transpired and he then produced the alleged murder weapons.

9. PW6, Dr. Edward Vilembo, testified that he works at Bungoma County Hospital as a doctor, he performed a post mortem on the body of the deceased and also filled in the Report, he formed the opinion that the cause of death was severe head injury due to assault and produced the Report.

10. At this stage, the Court is only considering whether the accused have a case to answer. A case to answer was described by G. Dulu J in the case of Republic v Joseph Shitandi & Another [2014]eKLR as follows:“A case to answer is a case where if the accused keeps quiet, the evidence of the prosecution should be such that a conviction will result.”

11. The procedure in determining whether an accused has a case to answer was discussed in the case of Republic v Samuel Karanja Kiria [2009] eKLR where J.B Ojwang J (as he then was) stated the following:‘The question at this stage is not whether or not the accused is guilty as charged but whether there is cogent evidence of his connection with the circumstances in which killing of deceased occurred. That the concept of prima facie case dictates as a matter of law that an opportunity created by this court for the accused to state his own case regarding the killing. The governing law on this point is well settled ... The Court of Appeal is Criminal Appeal No. 77/2006 expressed that too detailed analysis of evidence stage at no case to answer stage is undesirable it the court is going to put accused on his defence as too much details in the trial court’s ruling could then compromise the evidentiary quality of the defence to be mounted.’”

12. The trial Court is however cautioned that at this stage, it should not make definitive findings should it conclude that the accused has a case to answer. In this regard, in Festo Wandera Mukando v Republic [1980]KLR 103, E. Trevelyan J stated as follows:“...we 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, and an extreme case, may require an appellate court to set aside an otherwise sound judgment. Where a submission of “no case” to answer 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.”

13. I have considered the evidence on record and the testimonies of the witnesses as set out above and, without delving into the merits thereof, I only state my finding to be that the prosecution has established that both the accused persons have a case to answer.

14. The accused persons are therefore informed of their rights under Article 50(2)(i)(j)(k) of the Constitution and also under Section 306(2) of the Criminal Procedure Codeto address the Court. Accordingly, they are informed that they have a right to address the Court either personally or by their Advocate and to give evidence on their own behalf or to give unsworn statements, and to call witnesses in their defences. The Accused persons are therefore placed on their defence.

DELIVERED, DATED AND SIGNED AT ELDORET THIS 3RD DAY OF NOVEMBER 2023. .......................................WANANDA J.R. ANUROJUDGE