[2020] KEHC 2276 (KLR)
The court found that the prosecution had established a prima facie case against both accused persons, meaning that there was sufficient evidence on record that, if unchallenged, could lead to a conviction. The court clarified that at this stage, it is not required to make a final determination on the credibility of...
Source-derived case information.
- Citation
- [2020] KEHC 2276 (KLR)
- Parties
- Applicant: Republic; Defendant: Tititi Ole Potot; Defendant: Lekishon Mouwo
- Court
- High Court
- Court Station
- High Court at Narok
- Jurisdiction
- Kenya
- Case Number
- Criminal Case Case19 of 2017
- Procedural Posture
- Criminal Case / Ruling on Case to Answer at Close of Prosecution Case
- Outcome
- accused persons put on their defence
- Legal Topics
- Prima Facie Case, Burden of Proof, Murder, Malice Aforethought
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Republic
Applicant
Tititi Ole Potot
Defendant
Lekishon Mouwo
Defendant
Procedural Posture
Criminal Case / Ruling on Case to Answer at Close of Prosecution Case
Legal Issues
- 1 Whether the prosecution has established a prima facie case against the accused persons to require them to be put on their defence under section 306(1) of the Criminal Procedure Code.
- 2 Whether the evidence adduced by the prosecution is sufficient to warrant the accused being called upon to answer the charge of murder.
Ratio Decidendi
The court found that the prosecution had established a prima facie case against both accused persons, meaning that there was sufficient evidence on record that, if unchallenged, could lead to a conviction. The court clarified that at this stage, it is not required to make a final determination on the credibility of the prosecution witnesses or the ultimate guilt of the accused. Instead, the test is whether a reasonable tribunal, properly directing itself to the law and evidence, could convict if the defence offered no explanation. The court found the authorities cited by both parties, particularly R.T. Bhatt v Regina, persuasive and applicable. The court concluded that the evidence...
Court Disposition
accused persons put on their defence
Orders
- The accused persons are hereby put on their defence.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAROK
CRIMINAL CASE NO. 19 OF 2017
REPUBLIC.......................................................................................PROSECUTOR
VERSUS
TITITI OLE POTOT........................................................................1ST ACCUSED
LEKISHON MOUWO...................................................................2ND ACCUSED
RULING
The case for the defence.
1. The issue before this court is whether the prosecution has established a prima facie against both accused to require them to be put on their defence in terms of section 306 (1) of the Criminal Procedure Code (Cap 75) Laws of Kenya.
2. Mr. Kamwaro, counsel for the accused persons has submitted that no prima facie has been established against both accused. He has therefore urged the court to enter a verdict of not guilty and acquit them.
3. Based on the eyewitness evidence of the prosecution witnesses (Pw 1, Pw 2, Pw 3 and Pw 4) Mr. Kamwaro submitted that they were not consistent and their evidence is not reliable to the extent that it cannot be relied upon by the court to find that they have a case to answer.
4. Counsel cited a number of authorities including Miller v Minister of Pensions [1947] 2 ALL ER 372-373, which deals with the issue as what constitutes the burden of proof beyond reasonable doubt. He also cited among other authorities, the case of R.T. Bhatt v Regina [1957] EA 332-335.
5. He therefore urged the court to acquit them of the murder charge.
The case for the prosecution.
6. The prosecution submitted that the a prima facie case has been made against both accused so as to require to be put on their defence.
7. Ms. Torosi, counsel for the prosecution submitted that the accused persons were positively identified by the prosecution witnesses as being at the scene of the alleged killing and malice aforethought in terms of 206 (a) of the Penal Code was proved. She submitted that by the nature of the injuries inflicted on the deceased clearly proved malice aforethought.
8. Counsel cited the case of R.T. Bhatt v Regina, supra;which also was cited by the defence.
9. She therefore urged the court to put both accused on their defence.
Issues for determination.
10. I have considered the evidence of the prosecution witnesses and the submissions of both counsel including the authorities they cited.
11. I bear in mind that this court sits both as a jury and as a court of law (judge). I also bear in mind that I am not required to finally determine whether the prosecution witnesses are credible or not. This determination will be done after the close of the evidentiary hearing of the case; which stage has not been reached. The case of Miller v. Minister of Pensions, supra, is inapplicable, for it relates to proof beyond reasonable doubt, which is not the position here.
12. I find as persuasive the decision of the Eastern Court of Appeal in R. T. Bhatt v Regina [1957] EA 332-335, in which that court in part pronounced itself in that regard as follows:
“…It may not be easy to define what is meant by a prima facie case, but at least it must mean one 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.”
13. Furthermore, in Wachira v Republic [1975] EA 262it was held that:“a court is only entitled to acquit at the close of the prosecution case if there is no evidence of a material ingredient of the offence or if the prosecution has been so discredited and the evidence of their witnesses so incredible and untrustworthy that no reasonable tribunal properly directing itself could safely convict.”
14. I have directed my mind to the law and the evidence produced by the prosecution. I find that a prima facie case has been made against the accused persons.
15. In the premises, I hereby put the accused on their defence.
Ruling signed, dated and delivered at Narok this 21st day of October, 2020 in the presence of Ms. Torosi for the Republic and Mr. Kamwaro for both accused.
J. M. BWONWONG’A.
J U D G E
21/10/2020