[2022] KEHC 12439 (KLR)

Republic v Zakaria Kalama Mulati (Criminal Case E041 of 2021) [2022] KEHC 12439 (KLR) (14 July 2022) (Ruling)

Neutral citation: [2022] KEHC 12439 (KLR)

Republic of Kenya

In the High Court at Eldoret

Criminal Case E041 of 2021

RN Nyakundi, J

July 14, 2022

Between

Republic

Prosecution

and

Zakaria Kalama Mulati Alias Zack

Accused

Ruling

1. The accused herein was charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code. The particulars of the offence are that on the June 3, 2021 at Hill School Estate in Pioneer location, Kapseret Sub County within Uasin Gishu County, Zakaria Kalama Mulati alias Zack murdered Simeon George Odhiambo Nyambok.

2. The accused pleaded not guilty to the charge. He was represented at the trial by Mr Kinyua advocate and the prosecution was conducted by Ms Limo, Prosecution Counsel. The prosecution called a total of six (6) witnesses to prove the ingredients of the offence beyond reasonable doubt 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. At the close of the prosecution case the defence counsel Mr Kinyua in compliance with section 306 (1) of the Criminal Procedure Code made a submission of a no case to answer in favour of the accused.

4. 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….”

5. The court, at this stage, is considering whether the accused has a case to answer. A case to answer was defined in the holding of the case Republic v Joseph Shitandi & Another [2014] eKLR as follows: -“A case to answer is a case where if the accused keeps quiet, the evidence of the prosecution should be such that a conviction will result.”

6. The Oxford Companion of Law at pg 907 gives the definition of a prima facie case as:“A case which is sufficient to all 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.”

7. The procedure in determination whether indeed, the accused has a case to answer was discussed in the case Republic v Stephen Chomba Kamau. [2021]eKLR thus: -“Republic v Samuel Karanja Kiria [2009] eKLR Justice JB Ojwang (as he then was) stated: -‘The question at this stage is not whether or not the accused is guilty as charged but whether there is cogent evidence of his connection with the circumstances in which killing of deceased occurred. That the concept of prima facie case dictates as a matter of law that an opportunity created by this court for the accused to state his own case regarding the killing. The governing law on this point is well settled ... The Court of Appeal is Criminal Appeal No 77/2006 expressed that too detailed analysis of evidence stage at no case to answer stage is undesirable it the court is going to put accused on his defence as too much details in the trial court’s ruling could then compromise the evidentiary quality of the defence to be mounted.’

8. From the evidence placed before me, I am satisfied that the test of a prima facie case has been met by the prosecution to warrant the accused person to be called upon to answer. The test to be applied here is as expressed under section 306 of the Criminal Procedure Code and buttressed by the legal principles in the cited authorities.

9. In the premises, the accused person is hereby called upon to answer the charge as per the steps outlined under section 306(2) as read together with section 307 of theCriminal Procedure Code.It is so ordered.

DATED, SIGNED AND DELIVERED AT ELDORET THIS 14TH DAY OF JULY, 2022. ............................R. NYAKUNDIJUDGEIn the presence of:-1. Mr Mugun2. Accused –absent3. Kinyua Margaret for accused present