[2020] KEHC 1214 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT GARSEN

CRIMINAL CASE NO. 14 OF 2018

REPUBLIC...............................................................................................PROSECUTION

VERSUS

WILSON KARIMI MUNGE......................................................................1ST ACCUSED

MIRIAM WAITHERA KARIMI..............................................................2ND ACCUSED

CORAM: Hon. Justice R. Nyakundi

Mr. Mwangi for the state

Mr. Omwancha advocate for the both accused persons

RULING

The two accused persons are facing a charge of murder contrary to Section 203 and 204 of the Penal Code. The particulars of the offence avers that on 11. 2,2018 at Bahati village in Mpeketoni, within Lamu County, jointly accused persons murdered Kevin Mburu Mwangi. In the respective pleas each of them denied the offence.

In accordance with the charge, the prosecution adduced evidence which revealed that: on 11. 2.2018 (PW1) Margaret Njoki heard the voice of Clement (PW3) calling her to go and see the deceased at the scene. On arrival, she found (PW3) holding the body of the deceased as he knelt down with a rope round his neck. At the same time (PW1) told the Court that the two accused persons were seen walking around the vicinity of the scene. The body of the deceased was later to be collected from the scene and taken to the mortuary for post-mortem examination.

According to (PW3) – Clement Kamunge on the material day together with the deceased they went in the field looking after cows and goats. In the course he left the deceased with the cows as oversaw the grazing of the goats. On return, he found the deceased had a rope around his neck already succumbed to death.

(PW4) – Joseph Mwangi Kamunge, the father to the deceased and (PW3)testified that on 11. 2.2018 he had assigned the duties to them to look after his cows and goats. It did not take long before (PW3) came back reporting that the deceased had hanged himself. When he met with his brother Karimi the first accused he replied that the death of the deceased is a small thing. Prior to that (PW4) testified that he had been threatened by the two accused persons.

(PW5) – Mary Wachuka Njugunagave evidence that on the fateful day when the deceased passed on she received information through the screams of Miriam and her daughter. It was her testimony that on going to the scene she saw the deceased lying down with a rope around his neck.

(PW6) – Alice Ngendo testified to the effect that on 11. 2.2018 she heard the second accused calling her children instructing them to prepare for Sunday school. As (PW6) went back to the house to make tea, she heard screams that the deceased had hanged himself. The incident was later to be reported to the police who collected the body for further action and post-mortem examination.

(PW7) – Ben Mburu Waweru testified that on 11. 2.2018 he had a conversation with the deceased as he left for church. While he was taking tea, information came in that the deceased is dead.

(PW9) – PC Geofrey Too of Mpeketoni Police Station, the investigating officer told the Court that he visited the scene where he drew the sketch plan, recorded statements from witnesses and made arrangements for the post-mortem examination. He was later to arrest the accused persons as suspects to the murder.

In support of the prosecution (PW9) produced in evidence the set of photographs, a rope and catapult, sketch plan, post-mortem examination as exhibits.

At the close of the prosecution case it’s the duty of the Court to make a finding on whether the burden of proof of a primafacie case has been established to warrant accused persons to be placed on their defence in terms of Section 306 (2) of the Criminal Procedure Code.

Determination

It has to be remembered that on a charge of murder contrary to Section 203 and 204 of the Penal Code the prosecution is bound by Law to proof the following elements beyond reasonable doubt:

(a). The death of the deceased.

(b). That the death of the deceased was unlawfully caused.

(c). That in causing death the accused persons did so with malice aforethought.

(d). That the accused persons were positively identified as perpetrators of the crime.

The burden of proof to establish that the accused persons charged of the crime are not innocent to entitle them the right to innocence rests with the state. That burden of proof in criminal cases is beyond reasonable doubt to be discharged by the state. This long held position in Law can be traced back to the decision in Woolmington v DPP {1935} AC 462 when Sankey L. C. declared interalia:

“If at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or prisoner, as to whether the prisoner killed the deceased with a malicious intention, the prosecution has not made out the case and the prisoner is entitled to an acquittal.”

The primary rule of evidence is that the state through the prosecution must proof both the actus reus and mensrea of the offence. That is the unlawful act or omission or the intention to commit the offence in question.

In Fowler v Padgee {1789} T. R. 509:

“It is a principle of natural justice and of our Law, that actus reus non facit reum nisi menssitma. The intent and the act must both concur to constitute the crime.”

The fundamental principle on a motion of no case to answer or demonstration proof of a primafacie case was laid down in Chief Justice of Parker of England in new practice directions of February 9, 1962where he had this to say:

“A submission that there is no case to answer may be properly be made or upheld:

(a). When there has been no evidence to prove an essential element in the alleged offence.

(b). When the evidence adduced by the prosecution has been so discredited as a result of cross-examination it is so manifestly unreliable that no reasonable tribunal would safely convict upon it.”

On the other hand, the concept of primafacie case connotes the sense by the prosecution to produce evidence sufficient to render reasonable conclusion to proof each element of the offence against the accused persons. Such standard of evidential proof compels the accsued to be placed on his or her defence to rebut it.

In the instant case, I have reviewed the scale and scope of the evidence adduced by the prosecution witnesses. The pertinent fact of the case points towards both direct and circumstantial evidence which establishes a primafacie case which may sustain a conviction against the accused persons.

It follows therefore that in terms of the determination if the prosecution has satisfied the criteria of a primafacie case against the accused persons. Accordingly, each of the accused is placed on his or her defence under Section 306 (2) of the Criminal Procedure Code.

DATED, SIGNED AND DELIVERED AT GARSEN THIS 3RD DAY OF DECEMBER, 2020

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R. NYAKUNDI

JUDGE

In the presence of

1. Minyazi holding brief for Mr. Omwancha for the accused persons

2. Mr. Mwangi for the state