REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KAJIADO

CRIMINAL CASE NO. 37 OF 2015

REPUBLIC......................................................PROSECUTOR

Versus

RULING

The accused persons were indicted with the offence of murder contrary to section 203 and section 204 of the Penal Code Cap 63. It is alleged that the accused persons on the night of 25^th and 26^th day of August 2014 at Namanga Township in Namanga Division within Kajiado County, jointly with others not before court murdered Kenneth Ndungu Muthoni hereafter referred as the deceased.

The accused persons denied the offence and a plea of not guilty recorded in their favour. The background of the case as presented by the prosecution is that on the fateful night of 25^th and 26^th August 2014 at Namanga Township the deceased and the accused persons lived together in the same house. It is alleged that the deceased lying beside the road with multiple injuries on the head and the chest spine field nervous system. This prompted the matter to be reported to the police station and investigations commenced.

The accused persons were arrested and accordingly charged with the offence of murder of the deceased. The prosecution called a total of ten (10) witnesses to prove all the ingredients of the offence. The prosecution under the law have the burden to prove the following ingredients beyond reasonable doubt:

(1) That the deceased is dead.

(2) The death of the deceased was unlawful.

(3) That there was malice aforethought.

(4) That the accused persons directly or indirectly participated in the commission of the alleged murder.

I have considered the evidence by the prosecution and material placed before me. The issue to be determined at this stage is whether the accused persons have a case to answer or can be put on their defence. The decision of a prima facie case under section 306 (1) of the Criminal Procedure Code has been left to the discretion of the court to consider based on the evidence on record and any submissions.

This legal principle has been clearly stated in the case of Sanjat Chattai v The State [1985] 39 WLR, 925 the court stated:

“A submission that there is no case to answer may properly be made and upheld:

When there has been no evidence adduced by the prosecution to prove at essential element in the alleged offence.

(b) When the evidence adduced by the prosecution has been so discredited that no reasonable tribunal could safely convict on it.”

In R.T. Bhatt v Republic [1957] EA 332 the East African Court of Appeal held that:

“A prima facie case could not be established by a mere scintilla of evidence or by an amount of worthless discredited prosecution evidence.”

In the Ugandan case Uganda v Muliwo Aramathan High Court Cr. Case No. 103 of 2008 the court held that, “proof of a prima facie case does not mean a case proved beyond reasonable doubt since at this stage, the court has not heard the evidence for the defence.”

I have carefully considered the evidence by the prosecution witnesses. The evidence adduced establishes the death of the deceased person as a result of multiple injuries inflicted on the night of 25^th and 26^th day of August, 2014.

On the question of the accused participation, the court finds that in the absence of any evidence to the contrary the evidence of PW1, PW7, PW8 does point to the accused as being house mates. I do recognize that at this state the standard of proof is not beyond reasonable doubt as required in a fully fledged trial. What the court must decide at this stage is whether on the face of it the prosecution has put forward a case to establish the essential elements of the charge as well as accused participation.

I have weighed the evidence and do find that a prima facie case against the accused has been made out to warrant each one of them to be put on his defence under section 306 (2) of the Criminal Procedure Code.

Dated, delivered and signed in open court at Kajiado on 5^th day of December, 2016.

……………......

R. NYAKUNDI

JUDGE

Representation:

Accused - present

Mr. Okioma advocate for accused - present

Mr. Akula for Director of Public Prosecution - present

Mr. Mateli Court Assistant - present