[2023] KEHC 25479 (KLR)

Republic v Tonui (Criminal Case E001 of 2020) [2023] KEHC 25479 (KLR) (16 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25479 (KLR)

Republic of Kenya

In the High Court at Bomet

Criminal Case E001 of 2020

RL Korir, J

November 16, 2023

Between

Republic

Prosecution

and

Robert Kipkorir Tonui

Accused

Ruling

1. Robert Kipkorir Tonui (Accused) was charged with the offence of murder contrary to Section 203 as read with Section 204 of thePenal Code. The particulars of the charge were that on the 7th day of October 2020 at Seanin village in Toboino sub-location, Konoin sub-county within Bomet County, he murdered Emmy Chepkoech Mitei.

2. The Accused took plea on 26th October 2020 and denied the charge. His trial commenced on 6th October, 2021. To prove their case against him, the Prosecution called a total of sixteen (16) witnesses and produced 17 exhibits.

3. At the close of the Prosecution case both parties were required to file submissions on case or no case to answer.

4. The Prosecution filed submissions dated 26th September, 2023 while the Accused’s submissions were dated 29th November, 2022. In their extensive submissions the Prosecution restated the evidence of the prosecution witnesses and urged that the same had clearly established a prima facie case against the Accused as it proved the elements of the offence.

5. The defence also filed extensive submissions in which they sought to demonstrate that the prosecution evidence had not established the elements of the offence. They urged the court not to place the Accused on his defence as that would be tantamount to making him fill in the gaps in the prosecution case.

6. At this stage of the proceedings what this court is required to do is to establish whether a prima facie case against the Accused has been determine by the Prosecution. In the case of Ronald Nyaga Kiura Vs. Republic (2018) eKLR, LimoJ. held:-“It is important to note that at the close of prosecution, what is required in law at this stage is for the trial court to satisfy itself that a prima facie has been made out against the accused person sufficient enough to put him on his defence pursuant to the provisions of Section 211 of the Criminal Procedure Code. A prima facie case is established where the evidence tendered by the prosecution is sufficient on its own for a court to return a guilty verdict if no other explanation in rebuttal is offered by an accused person. This is well illustrated in the cited Court of Appeal case ofRamanlal Bhat -vs- Republic [1957] EA 332. At that stage of the proceedings the trial court does not concern itself to the standard of proof required to convict which is normally beyond reasonable doubt. The weight of the evidence however must be such that it is sufficient for the trial court to place the accused to his defence.”

7. In determining whether the Prosecution has established a prima facie case against the Accused, I warn myself against making definitive findings at this stage of the trial. I am persuaded by the case of Republic V Robert Zippor Nzilu (2020) eKLR, where OdungaJ. (as he then was) held that:-“That there is a danger in making definitive findings at this stage, especially where the Court finds that there is a case to answer is not farfetched and the reasons for not doing so are obvious. As was appreciated by Trevelyan and Chesoni, JJ in Festo Wandera Mukando Vs. The Republic (1980) KLR103:“we once more 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, in an extreme case, may require an appellate court to set aside an otherwise sound judgement. Where a submission of “no case” 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.”

8. Similarly, the Court of Appeal in Anthony Njue Njeru vs Republic (2006) eKLR held that:-“………..We wish to point out here that it is undesirable to give a reasoned ruling at the close of the prosecution case as the learned Judge did here unless the Court concerned is acquitting the accused person.”

9. I have carefully considered the evidence on record while bearing in mind the elements of the offence. I have also carefully considered the respective submissions of the parties. I am satisfied that the prosecution has established a prima facie case against the Accused.

10. It is my finding that the accused has a case to answer and is hereby placed on his defence in accordance to section 211 of the Criminal Procedure Code. He shall elect his mode of defence in accordance with Section 306 of the Criminal Procedure Code.

Orders accordingly.

RULING DELIVERED, DATED AND SIGNED AT BOMET THIS 16THDAY OF NOVEMBER, 2023. ..........................R. LAGAT-KORIRJUDGERuling delivered in the presence of Mr. Njeru for the State, Ms. Brandy Kosgei for the Accused. Siele (Court Assistant)