[2017] KEHC 506 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT SIAYA

HCCRC NO. 4 OF 2017

(MURDER)

(CORAM: J.A. MAKAU – J)

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

VS

ZAKARI ODONGO NYAMULO.......................................1ST ACCUSED

JUSTO ODUOR MAUJE....................................................2ND ACCUSED

MICHAEL ODONGO OLERO..........................................3RD ACCUSED

AMBROSE OTIENO ODHIAMBO.................................4TH ACCUSSED

EDWINE OTIENO OOKO.................................................5TH ACCUSED

RULING ON A CASE TO ANSWER

1. The Accused; Zakari Odongo Nyamulo, Justo Oduor Manje, Michael Odongo Olero, Ambrose Otieno OdhiamboandEdwine Otieno Ookoare charged with an offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. The Particulars of the charge are Zakari Odongo Nyamulo, Justo Oduor Mauje, Michael Odongo Olero, Ambrose Otieno Odhiambo and Edwine Otieno Ooko on the 21st day of January, 2017 at around 2000 hrs at Sirembe Market, Sirembe Sub-Location in Gem Sub-County within Siaya County jointly with others not before court murdered one JOSEPH OWINO ODUOR

2. The Prosecution called 1 witnesses in support of the charge and closed their case upon which Mr. B.F. Odhiambo, Learned Advocate, for the defence submitted that all the five (5) Accused persons have no case to answer. He urged that the Prosecution failed to establish as prima faciecase against the Accused persons to warrant them being put on their defence.

3. The defence contended that evidence adduced is so insufficient that even if the Accused persons opted to keep quiet the Prosecution case will not stand but fall on question of identification of the Accused persons, urging PW1 and PW2 were not at the scene, that PW3 did not recognize anyone as the source of light was insufficient to enable him see and identify anyone and there was a big crowd, that PW4 stated the mob was large and the scene was dark and as such the conditions, were not favourable for positive identification of the attackers, that PW6 found as crowd of 20 to 30 people one on part and another of 8-10 people and urged PW3 and PW4 who were with him did not see those two groups, however he stated to have seen some of the Accused persons at the scene on the material night with the aid of motorbike light which was not far, for about 10 seconds, and the 2nd and 3rd Accused were not at the scene that PW7 did not mention any of the Accused persons being at the scene. That PW8 visited the scene in company of Cpl. Wanyama and that the in-charge of their Post found them later. The Counsel urged that the investigation was carried out by the in-charge of Sirembe Police Post and not by PW11 of Yala Police Station, pointing out, PW1 was not truthful in his evidence as an inquiry file had been opened because there was doubt as to what had taken place and that is reason why the Accused were arraigned before Court on 7. 3.2017 in spite of the offence having taken place on 21. 1.2017. The defence urged the identification parade was not conducted, as Regulation 6(IV) of Force Standing Orders were contravened.

4. Mr. Ombati, Learned Prosecution Counsel on his part urged the Court to peruse and consider the evidence on record urging PW1 and PW2 were clear that they were not at the scene of incident, but were with the deceased before his death who was in good condition, PW3, PW4 and PW6 were eye witnesses who mentioned the people they saw and stated the role played by them, that PW4 and PW6 confirmed the voices of the people who were known to them, urging PW3, PW4 and PW6 evidence was of recognition and pointed out PW6 was clear of the people he saw as spectators and the others who were attacking the deceased. He urged PW3, PW4 and PW6 were not mistaken on the identity of the people they mentioned to the Police. The Learned Prosecution Counsel, urged the Accused persons were placed at the scene by the Prosecution witnesses. He urged at this stage the Court is only required to evaluate the evidence as to whether a prima facie case has been established and as such the Accused has to explain to the Court their position. On identification parade, he urged PW9 conducted the identification parade properly. On PW11 the Prosecution urged as some of the Accused description and alias names were given identification parade were necessary to be sure of the correct persons referred to by the witnesses in their reports to the Police. The Counsel urged Court to place the Accused on their defence.

5. In criminal cases the burden of proof lies with prosecution and never shifts and a prima facie case is made if at the close of the prosecution case, the evidence is one which on full consideration might possibly in absence of explanation to the contrary be sufficient to sustain a conviction.

6. In the case of R V Jagjiven M. Patel and Others I TLR 85 the Learned Judge stated thus:-

“All the court has to decide at the close of evidence of the charge is whether a case is made out against the accused just sufficiently to require him to make a defence, it may be a strong case or it may be a weak case. The court is not required at this stage to apply, its mind in deciding finally whether the evidence is worthy of credit or whether, if believed, it is weighty enough to prove the case conclusively, beyond reasonable doubt. A ruling that there is a case to answer would be justified, in my opinion, in a border line case where the court, though not satisfied as to conclusiveness of the prosecution evidence, is yet of opinion that the case made out is one which on full consideration might possibly be thought sufficient to sustain a conclusion.”

7. In Sospeter Gitonga and 2 Others v. Republic HCRA No. 93 of 2010 (Meru) a two Judge bench reiterated the guidelines that should be considered on properly conducted identification parade and stated as follows:-

“It is trite law that for a proper identification parade to be conducted the identifying witness must first give a description of the person he claims he was able to identify before the parade is held. That way there will be a basis of testing the evidence of identification to confirm whether there was any material basis upon which the parade was held in the first place and the person was identified.”

8. I have very carefully perused and evaluated the evidence adduced before me by the 11 Prosecution witnesses. PW3 in his evidence testified with the aid of light of oncoming motorbike and hazard lights he was able to recognize the 3rd Accused, the 1st Accused, the 2nd Accused and the 5th Accused; all of whom were known to him for a period of not less than 20 years. That he attended identification parade and was able to identify the Accused persons. PW4 who was with PW3 at the scene of the incident, 4 meters from where the deceased was being beaten with the aid of motorbike light he testified he was able to see and did recognize the 1st Accused and the 3rd Accused amongst others beating the deceased. That he recorded his statement on 20. 2.2017 and subsequently took part in the identification parade and was able to identify the 1st, 2nd and 3rd Accused persons. PW6 testified he saw two crowds of people, one of 20 – 30 people, which was just spectating and another comprising of 8 – 10 people who were actively participating in attacking the deceased. He was able to see them with the aid of motorbike light directed at the people and from a distance of 2 feet he saw and recognized amongst the group of 8-10 people, the 1st Accused, the 4th Accused who he gave description as a person who walked with one deformed leg. He recorded his statement on 2. 3.2017 and later took part in the identification parade and was able to recognize the Accused persons.

9. I have perused the identification parade Forms P 1 (a) – (f) and have considered the evidence by PW9, the officer-in-charge of the identification parade, as well as the evidence by the witnesses who took part in the identification parade. I have upon perusal of each of the form P 1 (a) – (f) and I am satisfied the identification parade was conducted properly and in accordance with the provisions of Regulation 6(IV) of the Force Standing Orders (Chapter 46) Laws of Kenyaand that the Accused were not prejudiced in anyway.

10. In view of the above, I find the Prosecution has established a prima facie case against each of the Accused, thus the 1st, the 2nd, the 3rd, the 4th and the 5th Accused persons to warrant each and every one of them to be put on his defence. Accordingly the 1st, the 2nd, the 3rd, the 4th and the 5th Accused are placed on their defence.

DATED AND SIGNED AT SIAYA THIS 30TH DAY OF NOVEMBER, 2017.

J.A. MAKAU

JUDGE

DELIVERED IN OPEN COURT THIS 1ST DAY OF DECEMBER, 2017.

In the presence of:

Court Assistants:

Kevin Odhiambo

M. B.F. Odhiambo for Accused

Mr. Elphas Ombati for State

A1 - Present

A2 - Present

A3 - Present

A4 - Present

J.A. MAKAU

JUDGE