[2022] KEHC 2371 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT SIAYA

CRIMINAL CASE NO. E009 OF 2020

STATE.......................................................................................PROSECUTION

VERSUS

NELSON MBILU OKONDA...........................................................ACCUSED

RULING ON CASE TO ANSWER

1. The accused, Nelson Mbilu Okonda is 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 Information dated 14th December, 2020 are that on the 26. 11. 2020 at unknown time at Marenyo Sub location in Yala Township Location within Gem Sub county of Siaya County the accused murdered Brown Indimuli (the deceased).

2. The accused denied the charge and a plea of not guilty was entered. The prosecution has presented its case against the accused through the testimony of its seven (7) witnesses and this Court is now called upon to determine whether the accused has a case to answer or in other words whether the prosecution have established a prima facie case against the accused person to warrant him being placed on his defence.

3. The burden of proof lies with the Prosecution throughout the trial and that burden does not shift. The prosecution carries the burden or onus to establish the guilty of the accused person beyond reasonable doubt. However, at this stage, they are not expected to establish the guilt of the accused person beyond reasonable doubt. What is expected of the Prosecution is to establish a prima facie case against the accused person. However, a prima facie case is not necessarily one that must succeed.

4. Section 306 of the Criminal Procedure Code requires the court, after closure of the prosecution’s case, to make a considered determination on whether an accused person has a case to answer. The section provides:

“36(1) 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 record 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. On what constitutes a prima facie case, in Bhatt v R [1957] EA 332the Court of Appeal held:

“Remembering that the legal onus is always on the Prosecution to prove its case beyond reasonable doubt, we cannot agree that a prima facie case on full consideration might possibly be thought sufficient to sustain a conviction. This is perilously near to suggesting that the Court would not be prepared to convict if no defence is made but rather hopes the defence will fill the gaps in the Prosecution case. Nor can we agree that the question whether there is a case to answer depends only on whether there is “some evidence irrespective of its credibility or weight, sufficient to put the accused on his defence”. A mere scintilla of evidence can never be enough; nor can any amount of worthless discredited evidence. It is true as Wilson J said that the Court is not required at that stage to decide finally whether the evidence is worthy of credit or whether if believed it is weighty enough to prove the case conclusively: That determination can only properly be made when the case for the defence has been heard. It may not be easy to define what is meant by a “prima facie case” but at least it must mean one on which a reasonable tribunal properly directing its mind to the law and the evidence could convict if no explanation is offered by the defence.”

6. I have considered the evidence adduced by all the seven prosecution witnesses. In my view, and without delving deep into the merits of the said evidence as that might prejudice the defence, I am satisfied that the Prosecution have established a prima facie case against the accused person to warrant him being placed on his defence to answer to the charge of Murder contrary to section 203 as read with section 204 of the Penal Code.

7. Accordingly, the accused herein NelsonMbilu Okonda is hereby found to have a case to answer and is hereby placed on his defence. The provisions of section 306(2) of the Criminal Procedure Code and Article 50(2) (i), (k) and (l) of the Constitution on the rights of the accused person are hereby explained to the accused person.

8. Orders accordingly.

DATED, SIGNED AND DELIVERED AT SIAYA THIS 14TH DAY OF FEBRUARY 2022

R.E. ABURILI

JUDGE