[2023] KEHC 26414 (KLR)

State v Ombija (Criminal Case 13 of 2020) [2023] KEHC 26414 (KLR) (11 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26414 (KLR)

Republic of Kenya

In the High Court at Kisumu

Criminal Case 13 of 2020

RE Aburili, J

December 11, 2023

Between

State

Prosecution

and

Abisaye Odhiambo Ombija

Accused

Ruling

Introduction 1. The accused person herein, Abisaye Odhiambo Ombija is charged with the offence of Murder contrary to section 203 as read with section 204 of the Penal Code. The particulars of the information dated May 12, 2020 are that on the April 16, 2020 at West Seme sub-county location, Seme sub-county within Kisumu County jointly with another not before court he, unlawfully murdered Charles Otieno Ogutu.

2. The accused has denied committing the offence of murder as charged and the prosecution has called five (5) witnesses who have testified against him and closed its case on November 20, 2023.

3. The prosecution submitted that it was the accused who was left alone with the deceased on the night prior to the morning when the deceased was discovered dead and that this was an indication that the accused played a part in the death of the deceased.

4. The prosecution further relied on the postmortem report, PEX 1, that showed that the deceased died as a result of severe head injury secondary to blunt force trauma due to assault, an injury that the deceased could not have inflicted on himself.

5. Mr Maua for the accuse submitted that the prosecution had failed to establish a prima facie case against the accused as the evidence of PW3, Ruth Ombija was clear that she only saw the deceased and the accused exchanging words and not fighting and upon her return she found the deceased lying in a bush. Mr Maua further submitted that PW3 was the last person to see the deceased alive sleeping in the bush and that further anything could have happened to the deceased during the night.

6. This court is therefore called upon to determine whether, at this stage, based on the evidence adduced by the four prosecution witnesses, the prosecution have established a prima facie case to warrant the accused person to be placed on his defence to answer to the charge of murder.

7. It is important to note that the burden of proof lies on the Prosecution throughout the trial to prove their case against the accused person. That burden does not shift to the accused person. This is so because the accused person’s constitutionally guaranteed rights include the right to remain silent, the right to adduce and challenge evidence and the right not to give any incriminating evidence. However, at this stage, the prosecution is not expected to have proved their case against the accused person beyond reasonable doubt. The measure is for a prima faciecase to be established.

8. A prima facie case is established where the evidence tendered by the Prosecution is sufficient on its own for a court of law to return a guilty verdict even if the accused opts to remain silent.

9. Under section 306 (1) of the Criminal Procedure Code:“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 the several or any one of the 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.”

10. Having considered the testimonies of the five (5) prosecution witnesses, the question is whether the evidence tendered establishes a prima facie case against the accused, or whether the accused has a case to answer.

11. In Republic v Abdi Ibrahim Owi [2013] eKLR, the court defined a prima facie case as follows:“Prima facie’ is a latin word defined by Black’s Law Dictionary 8th Edition as, “sufficient to establish a fact or raise presumption unless disapproved or rebutted”. ‘Prima facie’ is defined by the same dictionary as “the establishment of a legally required rebuttable presumption.”

12. In simple terms, prima facie means the establishment of a rebuttable presumption that an accused person is guilty of the offence he/she is charged with. In Ramanlal Trambaklal Bhatt v R [1957] EA 332 at 335, the court stated as follows:“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 is made out if, at the close of the prosecution’s case, the case is merely one in which on full consideration might possible be thought sufficient to sustain a conviction.”This is perilously near 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 …..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 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, properly directing its mind to the law and the evidence could convict if no explanation is offered by the defence”.

13. From the above detained holding by the court, can this court on the basis of the evidence so far tendered by the prosecution, and this court properly directing itself to the law and evidence convict if the accused chooses not to give any evidence?

14. In Ronald Nyaga Kiura v Republic [2018] eKLR, the court held:“It is important to note that at the close of the Prosecution, what is required in law at this stage is for the trial court to satisfy itself that a prima facie case has been made out against the accused person sufficient enough to put him on his defence pursuant to the provisions of section 211 of the Criminal Procedure Code...”

15. The trial court is however cautioned that at this stage, it should not make definitive findings should it conclude that the accused has a case to answer.

16. In Festo Wandera Mukando v Republic [1980] KLR 103, the court held:“...We draw attention to the inadvisability of giving reasons for holding that an accused has a case to answer. It can prove embarrassing to the court and, and an extreme case, 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 that it is. 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.”

17. Examining the testimonies of the prosecution witnesses and without delving into the depths of their testimonies, I am satisfied that the prosecution have established a prima facie case against the accused person to warrant him to be placed on his defence.

18. I therefore find that the accused herein Abisaye Odhiambo Ombija has a case to answer and he is therefore placed on his defence. The provisions of section 306(2) of the Criminal Procedure Code as well as article 50(i,) (k) and (l) of the Constitution are read out to the accused who is represented b counsel and is free to consult his counsel on what mode of defence he wishes to offer.

19. I so order.

DATED, SIGNED AND DELIVERED AT KISUMU THIS, 11TH DAY OF DECEMBER, 2023R.E. ABURILIJUDGE