[2022] KEHC 13417 (KLR)

State v Ogola & 2 others (Criminal Case E009 of 2022) [2022] KEHC 13417 (KLR) (3 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13417 (KLR)

Republic of Kenya

In the High Court at Siaya

Criminal Case E009 of 2022

RE Aburili, J

October 3, 2022

Between

State

Prosecution

and

Alfred Odhiambo Ogola

1st Accused

Eric Ouma Owino

2nd Accused

Oyieko Otieno Ouma

3rd Accused

Ruling

1. The accused persons in this case are Alfred Odhiambo Ogola, Eric Ouma Owino and Oyieko Otieno Ouma. They are jointly charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code. Particulars of the offence are that on the March 2, 2022, they murdered one Bonface Ochieng.

2. The accused persons took plea and denied committing the offence.

3. The prosecution has called ten (10) witnesses before closing their case. This court is now called upon to rule on whether the three accused persons or any one of them has a case to answer. In other words, the question is whether the prosecution has established a prima facie against the three accused persons to warrant them being placed on their respective defences.

4. The prosecution did not make any submissions.

5. Counsel for the accused person herein, Ms Elizabeth Agina advocate filed written submissions submitting that the 3 accused persons have no case to answer and urging this court to find as such and acquit them of the offence of murder.

6. She cited section 211 of the Criminal Procedure Code on the definition of what a prima facie case is and the case of R T Bhatt v Republic[1957] EA 332 - 335 where the Court of Appeal defined a prima facie case as one which a reasonable tribunal, properly directing its mind to the law and the evidence could convict if no explanation is offered by the defence.

7. Further, counsel submitted that to establish whether a prima facie case has been established, it is tantamount to establishing that an accused person is guilty of an offence without consideration of additional evidence. To arrive at that decision, counsel submitted that it becomes necessary to interrogate whether the prosecution’s case as presented would return a verdict of guilty for the offence of Murder.

8. She then went ahead to analyze all the elements of murder and submitted that other than the undisputed fact of death of the deceased as presented by PW8 of post mortem report dated July 2, 2021, according to her, the evidence of PW8 shows that the deceased died in the circumstances of mob injustice.

9. Further, that there was no proof of malice afterthought. It was submitted that although PW8 testified that the weapon used was blunt, other prosecution witnesses referred to different sets of weapons including rungus, pangas and sticks hence the nature of the weapon used was not established.

10. Further, that the evidence of PW1, PW2, PW3 and PW9 does not establish the manner in which the murder weapon was used and which part of the body of the deceased was being targeted.

11. In addition, counsel submitted that no negative aspersions have been made on the conduct of the accused persons by the prosecution witnesses, and that to the contrary, PW9 stated that he had a positive relationship with all the three accused persons hence the motive could not be discerned on their part to warrant malice afterthought.

12. On whether the accused persons directly or indirectly participated in the murder of the deceased, Ms. Agina submitted that PW3 who arrived at the scene together with the deceased testified that he ran to a safe place and could only hear from a distance that the deceased was being beaten hence he could not identify who caused the injuries on the deceased. Further, that PW2 testified that they were beaten simultaneously hence he could not see who was beating the deceased.

13. It was submitted that the offence was committed under cover of total darkness hence the witnesses could not positively recognize the over 30 mob who were beating the deceased. Counsel urged the court to acquit all the 3 accused persons under section 306(1) of the Penal Code.

14. As stated earlier on, the prosecution did not make or file any submissions.

Determination 15. I have considered the evidence of the 10 prosecution witnesses and the written submissions filed by Ms Agina Elizabeth representing the accused persons, on whether the 3 accused persons have a case to answer for the alleged murder of the deceased Bonface Ochieng.

16. For an accused person to have a case to answer, the prosecution evidence adduced, as a whole, must establish a prima facie case against the accused persons.

17. A ‘prima facie’ was defined in Republic v Abdi Ibrahim Owl [2013]eKLR as “Prima facie is a latin word defined by Black’s Law Dictionary, 8th Edition as “sufficient to establish a fact or raise a presumption unless disproved or rebutted”. “A prima facie case” is defined by the same Dictionary as “The establishment of a legally required rebuttable presumption”. To digest this further, in simple terms, it means the establishment of a rebuttal presumption that an accused person is guilty of the offence he/she is charged with. InRamanlal Trambaklal Bhatt v Republic [1957] EA 332 at 334 and 335, the court stated as follows:“Remembering that the legal onus is always on the Prosecution to prove its case beyond reasonable doub...defence”.

18. In Ronald Nyaga Kirra v Republic [2018]eKLR the court held inter alia that a prima facie case is established where the evidence tendered by the prosecution is sufficient on its own for a court to return a guilty verdict if no other explanation in rebuttal is offered by an accused person, as was illustrated in the cited case of R. Bhatt v Republic (supra).

19. The Oxford Companion of Law at page 107 defines prima facie 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”.

20. However, courts have warned of the danger of making definitive findings at this stage especially where the court finds that there is a case to answer. In Festo Wandera Mukando v Republic[1980]KLR 103, the court observed inter alia that:“...we once more draw attention to the inadvisability of giving reasons for holding that an accused has a case to answer. It can prove embarrassing to the courts and, in extreme cases, may require an appellate court to set aside an otherwise sound judgment. Where a submission of ‘no case to answer’ is rejected, the court should say no more than it is otherwise where the submission is upheld when reasons should be given; for then that is the end to the case or the count or counts concerned.”

21. What all these citations speak to is that where it is obvious that the accused if placed on the defence will simply be filling the gap for the prosecution’s case, or be asked to exonerate self from the offence and especially where no witness recognized or identified an accused and in the absence of any forensic evidence or strong circumstantial evidence against the accused, the court should not place the accused on his defence for the sake of completing the trial or in the hope that his testimony in defence may breathe life into an otherwise hopeless case which was dead on arrival. (See Antony Njue Njeru v Republic [2006]eKLR).

22. Thus, a defence ought not to be called merely to clear or clarify doubts, because it is the duty of the prosecution to prove their case against an accused person beyond reasonable doubt and the court is not entitled merely for the sake of the joy of asking for an explanations or the gratification of know what the accused have got to say about the prosecution evidence to rule that there is a case for the accused to answer.

23. At a glance, in the instant case, PW1 was on the material night attending a funeral of his aunt at Mahelo and in the company of others, they decided to leave. On their way, they met a group of people who started assaulting PW1 and his colleagues while alleging that PW1 and his team were cattle thieves. PW1 called Nobert and Ochieng who were still at the funeral, to rush to the scene and aid PW1 and his team. Nobert and Ochieng rushed to the scene but the mob could hear none of their pleas that they were not cattle thieves but mourners. The mob beat them even more.

24. From that group of many people, PW1 testified that he knew some of them and grave their names as Erick Ouma Owino Otieno Ouma and the 1st accused whose name he could not remember; but described him as one who sells fish. He stated that the 3rd accused used to buy sodas from PW1 while the 2nd accused was a boda boda rider and that he used to collect sodas from PW1 while PW1 used to buy fish from the 1st accused.

25. PW1 maintained that he saw the 3 accused who lit torches at the victims and that they were also talking to PW1 who also knew them by their voices very well.

26. Nobert on the other hand was a police officer so he got to the scene upon being called to help fired in the air, but the mob continued assaulting PW1 and Charles Okello who had been made to sit on the ground. They then escaped but left behind the deceased Bonface being beaten using pangas and rungus as he had an accident earlier on, making it difficult for him to escape from the mob.

27. PW2 too reiterated the testimony of PW1 saying he knew the 3 accused persons even by name and what weapons they were carrying that night and the mob lit torches at one another and so PW2 saw them and identified them physically and by their voices. He stated that the accused even called their victims by name. PW3, Nobert was new in the area. He did not know the assailants. He is the one who went to rescue PW1 and PW2. He fired in the air but the assailants were unmoved.

28. PW4 drove to the scene to aid the rest who were his relatives but was overwhelmed so he escaped by driving off. He could not identify the assailants as he never got off the vehicle.

29. PW8 the doctor who performed an autopsy on the deceased’s body found that the deceased suffered both cuts and blunt injuries, all scattered all over the body of the deceased.

30. PW9 was in the company of PW1, PW2 and the deceased and he testified that he saw and spoke to the accused persons whom he knew very well as they had torches and were talking to their victims. That he knew them as well by their voices. PW10 was the Investigating officer in the case and recorded statements of what the witnesses saw and heard or experience don the material night.

31. The defence counsel has submitted on the essential ingredients of the charge of murder and contended that the prosecution evidence failed to establish those elements. It is important to note that whereas upon consideration of the totality of evidence at the end of the trial, the court may well find that the prosecution has failed to prove its case against the accused persons beyond reasonable doubt, it is my humble view that that is not the same as saying that a prima facie has been made out to warrant the court place the accused persons on their defence.

32. It is well known that a prima facie case is not necessarily one that must succeed. What this means is that notwithstanding the court’s initial finding of a prima facie case being established, the court, is not bound to convict an accused person merely because they were found with a case to answer.

33. This is so because article 50(2) of the Constitution guarantees every accused person the right to remain silent, to adduce and challenge evidence by the prosecution and not to give self-incriminating evidence. Thus, even after placing the accused on their defence, at the conclusion of the trial, the court will still evaluate the evidence and make a finding based on the facts and the law, on whether the prosecution has proved its case beyond reasonable doubt to warrant or sustain a conviction, which is not the same standard applicable to the finding of existence of a prima facie case for purposes of a case to answer.

34. In May v O’Sullivan [1955] 92 CLR 654, it was held that;“When at the close of the case for the Prosecution, a submission is made that there is no case to answer, the question to be decided is not whether on the evidence as it stands, the defendant ought to be convicted, but whether on the evidence as it stands, he could be convicted. This is really a question of law. See also Republic Vs Galbraith [1981]WLR 1039.

35. For the aforesaid reasons, I must at this stage refrain from delving deep into the evidence adduced. However, having considered the evidence by the 10 prosecution witnesses as a whole, I am persuaded that a prima facie case has been established to warrant the three accused persons to be placed on their respective defences. The question as to whether that evidence meets the threshold for convicting the accused shall be considered at the end of the trial.

36. Accordingly, the three accused persons herein Alfred Odhiambo Ogola, Eric Ouma Owino and Oyieko Otieno Ouma are all found with a case to answer and are hereby placed on their defences. The provision of section 306(2) of the Criminal Procedure Code and article 50(2) (i)(k)(l) of the Constitution on the rights of the accused person are hereby explained to each of the accused persons in Dholuo language.

37. I so order.

DATED, SIGNED AND DELIVERED AT SIAYA, THIS 3RD DAY OF OCTOBER 2022R.E. ABURILIJUDGE