[2022] KEHC 14718 (KLR)

Republic v Wanyama (Criminal Case E012 of 2021) [2022] KEHC 14718 (KLR) (2 November 2022) (Ruling)

Neutral citation: [2022] KEHC 14718 (KLR)

Republic of Kenya

In the High Court at Bungoma

Criminal Case E012 of 2021

DK Kemei, J

November 2, 2022

Between

Republic

Prosecutor

and

Ayub Simiyu Wanyama

Accused

Ruling

1. Ayub Simiyu Wanyama hereinafter referred to as the accused was charged before this court with the offence of murder contrary to section 203 as read with section 204 of the Penal Code (Cap 63 of the Laws of Kenya). The particulars of the charge are that the accused 26th and March 27, 2021, at Sayoni Village in Misikhu sub-Location of Bungoma East sub-county within Bungoma County murdered Charles Natembea Simiyu (hereinafter referred to as the deceased).

2. The accused pleaded not guilty to the charge. He was represented at the trial by Mrs. Natwati while the prosecution was conducted by Miss Omondi and later by Miss Mukangu. The prosecution called a total of six (6) witnesses in support of its case and were to prove the ingredients of the offence constituting the following:(1)The death of the deceased.(2)The death of the deceased was unlawful.(3)That in causing death there was malice aforethought on the part of the accused.(4)That the accused was positively identified as the one who caused or participated in the killing of the deceased.

3. PW1 was Dr. Edward Vilembwa who testified that he worked at Webuye District Hospital and was the one who conducted the post-mortem examination on the body of deceased. The said doctor noted that there were injuries on the right forearm, deformed skull, cut wound on the frontal head and lacerations on the occipital region of the head. He opined that the cause of death was severe head injury due to comminuted skull fractures with brain laceration inflicted by a blunt object with a sharp edge. He produced the post mortem report dated March 30, 2021 as Pexh 1. On cross-examination, he told the court that the deceased only had head injuries and that the suspected weapon of assault was both blunt and sharp.

4. PW2 was Fredrick Lucas Simiyu who testified that the deceased was his step-elder brother. He recalled on March 26, 2021 while preparing to go to bed the deceased came to his house shouting that one of his brothers was intending to kill him using a crude weapon. The assailant went by the moniker “Ras” and on heading out to investigate, he met the deceased and suddenly ‘Ras” joined them. He quickly tried to intervene only for “Ras” to allege that the deceased had hired goons to injure and kill him. The deceased alleged that “Ras” had always wanted to eliminate him. He requested both of them to cease harassing each other. The deceased who was visibly drunk left his house but kept on taunting “Ras” to accomplish his mission. The accused herein “Ras” then hit the deceased with a metal bar while the deceased was seated. He hit him on the head and this prompted him to quickly rush to where they were as the accused continued hitting him. The accused herein, “Ras”, claimed that the deceased had squandered his Kshs. 30,000/= with prostitutes. He quickly raised an alarm and villagers arrived at the scene. The accused fled from the scene. The police were summoned and the body was taken to the mortuary and the accused was apprehended the following day. On cross-examination, he told the court that both the accused and the deceased came to his house that night and that the deceased was drunk.

5. PW3 was Natembea Charles Wanyama who testified that the accused is his cousin while the deceased was also his cousin and elder brother to the accused. He recalled on March 26, 2021 PW2 informed him that the accused had killed the deceased. The accused went by the moniker “Ras”. He rushed to the scene and found the accused viciously hitting the deceased with a metal rod while claiming that the deceased should refund his money. He raised an alarm and the villagers came to the scene. The accused fled the scene while threatening anyone who tried to follow him with injury. The police officers arrived and he led them to the scene and who apprehended the accused the following day. On cross-examination, he told the court that he found the deceased already dead but still the accused kept on hitting him.

6. PW4 was No. 100XXX PC Nicholas Kipchumba who testified that on March 27, 2021 at 2. 30 am while on his duties, he received a report that an incident had been booked in the OBin relation to the death of the deceased. He proceeded to the scene and found the body of the deceased person. Next to the body he saw a slasher which had blood stains as the metal rod. They took photographs of the scene, took the exhibits collected and escorted the body to Webuye Mortuary. He recorded witness statements and at around 12 noon they arrested the accused person. He produced the two recovered items from the scene (slasher and metal rod) as Pexh 2 . On cross-examination, he told the court that the body was found outside the house of PW2. PW4 No. 100XXX PCNicholas Kipchumba was later recalled for further cross-examination and he told the court that the body of the deceased was recovered five metres from the house of the accused. On re-examination, he told the court that on arriving at the scene the accused had already fled and that when they arrested him, he was drunk but couldn’t tell if that was the case at the time of the incident.

7. PW5 was Peter Wanyonyi Luka who testified that while at home PW2 alerted him one Kanja had killed the deceased and he quickly accompanied him to the scene. He stated that Kanja was his elder brother and he witnessed the lifeless body of the deceased and he also saw his elder brother Ayub Simiyu alias Kanja holding a slasher, metal rod and hammer and who was shouting and claiming that he also wanted to kill him as well. The villagers arrived at the scene and the accused fled into a maize plantation. The accused was later on arrested and they recorded their statements. On cross-examination, he told the court that the accused is his brother and that he found the deceased dead when he arrived at the scene. On re-examination, he told the court that he saw the accused near the body of the deceased and that there was moonlight at that time and that he was able to recognize his voice as he spoke with him.

8. PW6 was Polycarp Luta Kweyu who testified that he worked at Kisumu Government Chemist as a Principal Chemist. He recalled on April 13, 2021 he received five items namely:i.A metal rod marked “A”ii.Hair sample of Charles Natembea Simiyu (deceased) marked “B”iii.Blood sample of Charles Natembea Simiyu (deceased) marked “C”iv.Fingernail of Charles Natembea Simiyu (deceased) marked “D”v.Buccal swab of Ayub Simiyu Wanyama (accused) marked “E”He stated that it had been requested that they carry out DNA profiling and establish any genetic relationship between the items. After thorough analysis the following was his conclusion:i.The metal rod “A” had stains that tested positive for blood of a human being.ii.The DNA profile found on the metal rod did match that of Charles Natembea Simiyu (deceased).He produced the analysis report dated March 16, 2022 as Pexh 5 and the exhibit memo dated April 13, 2021 as Pexh 6. On cross-examination, he told the court that a mouth swab was collected from the accused and that the DNA profile of the accused did not match that of the deceased. He also stated that he did not conduct finger print analysis on the exhibits as that was the duty of the investigators.

9. At the close of the prosecution case, the prosecution and defence counsels opted to rely on the evidence to determine whether or not a prima facie case had been made against the accused to require him to make a defence.

10. The Criminal Procedure Code section 306 (1) provides as follows:“When the evidence of the witnesses for the prosecution has been concluded, the court, if it considers that there is no evidence that the accused or any one of several accused committed the offence, shall after hearing, if necessary, any arguments which the advocate for the prosecution or the defence may desire to submit recording a finding of not guilty.(2)When the evidence of the witnesses for the prosecution has been concluded the court, if it considers that there is evidence that the accused person or any one or more of several accused persons committed the offence, shall inform each such accused person of his right to address the court on his own behalf or make unsworn statement and to call witnesses in his defence…..”

11. The question on the prima facie case has been extensively considered by the courts and other legal texts by scholars. The Oxford Companion of Law at page 907 gives the definition as:“A case which is sufficient to all is an answer while prima facie evidence which is sufficient to establish a fact in the absence of any evidence to the contrary is not conclusive.”

12. In making a finding on a prima facie case one should bear in mind the cardinal principle on the burden of proof that it is the duty of the prosecution to establish the guilt of the accused for the offence charged beyond reasonable doubt, as was stated in Woolmington v DPP [1935] EA 462 at 481.

13. Section 107 (1) of the Evidence Act Cap 80 of the Laws of Kenya provides that:“Whoever desires any court to give judgement as to any legal right or liability dependent on the existence of facts which he asserts must prove those facts exist.”

14. In criminal trials that burden of proof is always on the prosecution. A trial court is therefore enjoined by law to determine whether at the conclusion of the prosecution case there exists a case discharging that burden of proof. I have considered the prosecution evidence and all these issues as canvassed by the submissions on record. The issue to be determined is whether the prosecution has established a prima facie case against the accused to warrant him to be called upon to make a defence.

15. The legal principles to guide a trial court in making a determination on a prima facie case have clearly been stipulated in the Eastern African case of R.T. Bhatt v Republic [1957] EA 332. The legal principles which run through the cases cited revolves around sufficiency of evidence capable of establishing the ingredients of the offence the accused is charged with. Secondly, a mere scintilla of evidence can never be enough nor can any amount of worthless discredited evidence. Thirdly it is evidence adduced by the prosecution such that a reasonable tribunal properly directing its mind would convict the accused in absence of any explanation when called upon to answer or put on his defence.

16. In the instant, I appreciate and find that the testimony of each of the six (6) witnesses called by the prosecution as evaluated against the charge of murder facing the accused person together with the evidence placed before me, the testimonies of PW2 confirms that the accused was in the company of the deceased when the incident occurred in his compound and that PW2’s evidence as corroborated by PW4 confirms that the accused did kill the deceased and that the evidence of PW2 established that there was a squabble between the two. The evidence of PW5 as well as PW2, together with PW3,PW4 andPW5 confirm that the body of the deceased was found at the compound of PW2 and that the evidence of PW3 and that of PW5 leads towards the accused implicating himself in the death of the deceased and the evidence of PW1 and PW6 confirms that the deceased indeed had died. Besides that, it transpired from the evidence that the accused indeed without mercy beat up the deceased with the metal rod and even with the body of the deceased lying lifeless on the ground he still continued to deliver the hits. In totality I find that the evidence placed before me has met the threshold of a prima facie case. This means that the prosecution has established a prima facie case against the accused to warrant him to be called upon to make a defence to the charges facing him. The test to be applied here is as elucidated under section 306 of the Criminal Procedure Code and buttressed by the legal principles in the cited authorities. In a nutshell the evidence tendered at this stage is sufficient to sustain a conviction were the accused to elect to remain silent in defence. Indeed, the accused was placed at the scene of crime and that he had brawled with the deceased over some money and a tussle ensued leaving the deceased lifeless body on the ground and the accused fleeing the scene and the weapon used to hit the deceased, which were recovered from the scene, and produced as exhibits. All these left no doubt that the accused was the assailant and having been placed at the scene, he has to render an explanation as to how the deceased met his death.

17. In the result it is my finding that the prosecution has established a prima facie case against the accused to warrant him to be called upon to make a defence. I find the accused has a case to answer and is now called upon to make a defence in accordance with the provisions of section 306(2) of the Criminal Procedure Code.It is so ordered.

DATED AND DELIVERED AT BUNGOMA THIS 2ND DAY OF NOVEMBER, 2022. D. KemeiJudgeIn the presence of:Ayub Simiyu Wanyama AccusedNatwati for AccusedMukangu for ProsecutionKizito Court Assistant