[2022] KEHC 618 (KLR)

State v Anyama & 3 others (Criminal Case E025 of 2021) [2022] KEHC 618 (KLR) (9 May 2022) (Ruling)

Neutral citation: [2022] KEHC 618 (KLR)

Republic of Kenya

In the High Court at Siaya

Criminal Case E025 of 2021

RE Aburili, J

May 9, 2022

Between

State

Prosecution

and

Daniel Ojwang Anyama

1st Accused

Francis Otieno Otieno

2nd Accused

Geoffrey Odhiambo Abongo

3rd Accused

James Omondi Ogallo

4th Accused

Ruling

1. The accused persons herein Daniel Ojwang, Anyama, Francis Otieno Otieno, Geoffrey Odhiambo Abongo and James Omondi Ogallo are charged with the offence of Murder contrary to Section 203 as read with Section 204 of the Penal Code.

2. Particulars of information dated and filed in court on 23rd day of August 2021 and signed by Mr. Edward M. Kakoi, Senior Principal Prosecution Counsel on behalf of the Director of Public Prosecutions are that the 4 accused persons on the 26th May of 2021 at Liunda Beach, Uyawi sub-location in Central Sakwa Location in Bondo sub county within Siaya County, they jointly murdered Clinton Otieno Omondi.

3. The 4 accused persons took plea before the Recess duty court at Kakamega High Court before Hon. Farah Amin J on 9. 9.2021. They all pleaded Not Guilty to the charge of Murder and a Plea of Not Guilty was entered.

4. The Prosecution has called seven (7) witnesses who have testified against the 4 accused persons and closed its case on 25/4/2022.

5. The question now before this court is whether the prosecution evidence as adduced and on record establishes a prima facie case to warrant the 4 accused persons or any one of them to be placed on their defenses to answer to the charge of Murder as charged.

6. The burden of proof throughout the trial lies on the prosecution to prove their case against the accused persons and that burden does not shift. The accused persons thus have no duty to adduce and challenge the evidence adduced by the Prosecution witnesses. They also have no duty to give any self-incriminating evidence if they choose to adduce and challenge the evidence adduced by the Prosecution witnesses. This is so because the accused persons have constitutionally guaranteed rights among them, the right to remain silent.

7. That being so, it is upon the prosecution to adduce evidence that is water tight, to establish the guilty of the accused persons beyond reasonable doubt, by proving all the established ingredients of the charge of Murder.

8. However, at this stage, the court is not expected to determine whether the prosecution has proved its case against the accused persons beyond reasonable doubt, but whether prima facie, the evidence adduced warrants the court to place the accused persons on their defence.

9. A prima facie case is an early screen for a court to determine whether the prosecution can go forward to try the accused person, unless rebutted or disproved. It is the establishment of a legally required rebuttable presumption. A prima facie case is established where at the close of the Prosecution’s case, the case is merely one which on full consideration, might possibly be thought sufficient to sustain a conviction and it is one, on which, a reasonable tribunal properly directing itself or its mind to the law and the evidence, could convict if no explanation is offered by the defence. See Trambaklal Bhatt V.R. [1957] E.A. 332 at 334 and 335.

10. In the instant case, I have considered each of the testimonies of the 7 prosecution witnesses and without delving deep into that evidence, as was warned in the Bhatt v Republic (supra) case, I find that a prima facie case has been established to warrant the 4 accused persons to be placed on their respective defenses.

11. Accordingly, I hereby find and hold that Daniel Ojwang Anyama, Francis Otieno Otieno, Geoffrey Odhiambo Abongo and James Omondi Ogallo all and each one of them have a case to answer. They are each hereby placed on their respective defences to answer to the Information of Murder as charged. The provisions of Section 306(2) of the Criminal Procedure Code and Article 50(2)(i)(j)(k) of the Constitution are hereby explained to the accused persons in the presence of their counsel Mr. Ooro.

12. I so order.

DATED, SIGNED AND DELIVERED IN OPEN COURT AT SIAYA, THIS 9TH DAY OF MAY 2022R.E. ABURILIJUDGE