[2013] KEHC 406 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISII

CRIMINAL (MURDER) CASE NO. 21 OF 2008

REPUBLIC ......……………………………….………….………….. PROSECUTOR

VERSUS

THOMAS CHACHA NDERA ……………………………………….…… ACCUSED

JUDGMENT

The accused person herein, Thomas Chacha Ndera, was arraigned before court on 7th August 2008 on one count of murder contrary to section 203as read with section 204of the Penal Code. The particulars are that on 21st day of February 2008 at Masangora sub location in Kuria West District within Nyanza Province, he murdered James Chacha. The accused took plea on 25th September 2008, denying the charge. The case has been ongoing since then.

The first prosecution witness, Mary James Masiko testified as PW1 on 4th April 2011. She is the wife of the deceased herein. Her testimony was that on 21st February 2008 at about 9. 00 p.m., the accused herein went to the home of the deceased. PW1 was preparing supper. The trio had supper together and took tea thereafter.

At the time of departure, the accused requested the deceased to escort him and the two men left the house together. A few seconds later, PW1 heard her children saying they did not understand what was going on between the accused and the deceased. PW1 went out of the house only to find the deceased having been cut on the neck and cheek. PW1 also found the accused at the scene but on seeing PW1, the accused ran away.

PW1 screamed and attracted a large number of people among them John Erasha who came and wanted to assist her to take the deceased to hospital, but by that time, the deceased was already dead. PW1 stated further that on the material night there was very bright moonlight and that she was able to clearly see the accused who had left her house only a little while earlier. PW1 stated that the accused had stayed in her house for about 11/2 hours before he asked the deceased to escort him, having entered the house at 9. 00 p.m. and left at about 10. 30 p.m.

During cross examination, PW1 testified that prior to the date of the incident, she had met the accused once and that the accused was a friend of the deceased. PW1 could not tell whether the accused was drunk, but she confirmed that the deceased was not drunk. PW1 also stated that before she rushed out of the house, she heard the deceased screaming and saying: “Chacha, why have you cut me with a simi.”

From the record, no other evidence was led on behalf of the prosecution. The case was adjourned many times sometimes at the instance or absence of defence counsel and at other times at the instance of the prosecution who were unable to procure witnesses. Though the prosecution was granted a last adjournment on 10th October 2011, the case was fixed for hearing on a number of occasions thereafter.

On the 16th December 2013, the case came up again for hearing the date having been given by the Deputy Registrar on 15th August 2013, but the prosecution had no witnesses to call, saying that the witnesses were not traced. The prosecution counsel, Mr. Shabola, did not indicate to the court what efforts had been made by the police in tracing the witnesses, but only asked for another date.

The application for adjournment was opposed by Mr. S.M. Sagwe, counsel for the accused. Counsel contended that this being a 2008 case, the prosecution ought to have availed the witnesses. Counsel also contended that the witnesses have either lost interest in the case or they do not simply want to come to court and testify.

The court, after weighing the opposing submissions refused to grant any further adjournment in the matter due to the age of the case. The prosecution was therefore forced to close its case, whereupon defence counsel submitted that since the prosecution had failed to establish a prima faciecase warranting the accused to be put on his defence, the accused ought to be acquitted at this stage.

I have now considered the evidence on record and the submissions by counsel that the prosecution has not established a prima faciecase against the accused person. The issue that arises for determination is whether, as submitted by counsel, there is no prima facie case requiring the accused to be placed on his defence.

In my considered view, the prosecution has not established a prima facie case requiring the accused to be placed on his defence. What amounts to a prima facie case was set out in the case of Wibiro alias Musa –vs- R[1960] EA 184 which is that although a court is not required at this stage to establish that the prosecution has proved its case beyond any reasons doubt, it must nonetheless be satisfied that the evidence on record is such that a reasonable tribunal, properly directing its mind to the law and the evidence could convict if no explanation is offered by the defence. Also see Machakos Criminal Case No. 43 of 2005 – Republic –vs- Martin Marifa Kimulwa (unreported).

Under Section 206of the Penal Code, Cap 63 Laws of Kenya, the offence of murder is established when the prosecution proves malice aforethought by evidence proving any one or more of the following circumstances:-

an intention to cause the death of or to do grievous harm to any person, whether that person is the person actually killed or not;

knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether that person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused;

an intent to commit a felony;

an intention by the act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony.”

In the instant case, the only evidence on record is that of PW1, which evidence does not meet the threshold of establishing a prima facie case. In any event, the prosecution has not laid any evidence before this court to show the cause of death of the deceased and the person who caused that death and whether such person, in killing the deceased acted in any one of the ways set out under section 206 of the Penal Code.

The above being the position, I do not think that it would serve the ends of justice to put the accused person on his defence. Accordingly, I find the accused not guilty of the offence of murder and acquit him accordingly under section 306 (1)of the Criminal Procedure Code.

Unless he is otherwise lawfully held, the accused person shall be released from prison custody forthwith.

Orders accordingly.

Dated and delivered at Kisii this 19th day of December, 2013

R.N. SITATI

JUDGE

In the presence of:

Mr. Shabola (present) for State

Mr. H.N. Otara for S.M. Sagwe for Accused

Mr. Bibu - Court Clerk